McKiernan v. Lehmaier

• Decision Date: 19 December 1911
• Citation: 85 Conn. 111,81 A. 969
• Court: Connecticut Supreme Court
• Parties: McKIERNAN v. LEHMAIER.

81 A. 969

85 Conn. 111

McKIERNAN v. LEHMAIER.

Supreme Court of Errors of Connecticut.

December 19, 1911

Appeal from Superior Court, Fairfield County; Milton A. Shumway Judge.

Action by James H. McKiernan, administrator, against Louis A Lehmaier for negligent killing of plaintiff's intestate. There was a verdict and judgment for plaintiff for $5,000 and from the denial of a motion to set aside the verdict as against the evidence defendant appeals. Affirmed.

John H. Light, for appellant.

Hurlbutt & Davis, for appellee.

RORABACK, J.

From the evidence it appears that there was no substantial controversy as to the following state of facts: The plaintiff's intestate, George F. Seiler, about 8:45 in the evening of August 6, 1910, was run over and instantly killed by an automobile owned by the defendant and operated by his chauffeur, Charles Shatzer. At that time Shatzer was running the automobile from Norwalk to South Norwalk in a dark place in the highway, which was about 56 feet wide. That on the night of the accident Shatzer had driven the defendant and a friend from the defendant's home in Norwalk to Hoyt's Theater in South Norwalk, reaching the theater about 8 o'clock. That Seiler when he was killed was 28 years of age, perfectly healthy, and earning $18 per week. The defendant claims that the superior court erred in overruling his motion to set aside the verdict because the evidence showed that Charles Shatzer at the time of the accident was on an errand of his own, and was not in the execution of the defendant's business; that the deceased at the time of the accident was guilty of contributory negligence; that the verdict was excessive; and that the character of the argument made to the jury by counsel for the plaintiff improperly influenced their verdict.

There was evidence for the consideration of the jury from which they might fairly have found that Shatzer was the defendant's chauffeur, and on the night of the accident he brought the defendant from his home in upper Norwalk, a distance of about 2 1/2 miles, to a theater in South Norwalk. The business centers of the two cities are a mile and one-half apart. When the defendant alighted, he told the chauffeur to be at the theater at 9:30. The chauffeur then asked his employer to loan him a quarter with which to have his hair cut, and he did so. The chauffeur then visited two or three barber shops in South Norwalk, and, finding them crowded, he took his master's car and rode to the city of Norwalk, and found the shops there also crowded. He then started to drive back to the theater in South Norwalk, where he was going to wait for the defendant as he had been instructed. While on his way back to the theater to get the defendant, the car struck and killed Seiler. It is conceded that the relation of master and servant existed between the defendant and Shatzer; and, this being established, the question arises whether at the time Seiler was struck by the automobile and killed the servant was acting within the scope of his employment.

The general rule upon this subject is well stated in Stone v. Hills, 45 Conn. 44, 47, 29 Am.Rep. 635, as follows: " For all acts by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for the acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not under these conditions the servant alone is responsible." This court held that: " If the servant in going extra viam is really engaged in the execution of the master's business within the scope of his employment, it is immaterial that he joined with this some private business or purpose of his own. While the rule of such liability may be easily comprehended, its application to the varying facts is often difficult. The ultimate inquiry usually resolves itself into one of fact under the particular circumstances of each case." Ritchie v. Waller, 63 Conn. 155, 160, 163, 28 A. 29, 31 (27 L.R.A. 161, 38 Am.St.Rep. 361). Other cases similar in their nature and circumstances are of service in ascertaining what conditions are within or without the rule of liability. In Loomis v. Hollister, 75 Conn. 718, 55 A. 561, the master was held liable, although the servant made a detour with the defendant's team of about one-half a mile out of the direct course of his employer's business for the purpose of passing the post office where he stopped to get a newspaper for himself. While the servant was in the post office, the defendant's horses in his care, which he left unhitched, started for home, ran against the wagon of the plaintiff, and so caused the injury complained of. In Chicago Consol. Bottling Co. v. McGinnis, 86 Ill.App. 38, the master was held liable for injuries inflicted by the driver of his wagon, though the driver had temporarily departed from his employer's service, and had deviated from the direct route over which his duty required him to pass to call on his wife, and the accident occurred after the completion of this personal mission, at a time when the servant had again assumed control of his master's vehicle, but before he had actually again performed any act in his master's service. In Sleath v. Wilson, 9 C. & P. 607, 38 E. C. L. 249, where a master directed his servant to take his carriage to a liverystable, and the servant, instead of going directly to the stable, started off to deliver a package of his own, and in returning to the stable after the delivery of such package injured a pedestrian through his negligent driving, it was held that the master was liable.

In the case before us the servant with the knowledge and consent of his master left him with...