McQueen v. People's Store Co.

• Decision Date: 25 July 1917
• Docket Number: 13867.
• Citation: 166 P. 626,97 Wash. 387
• Court: Washington Supreme Court
• Parties: McQUEEN v. PEOPLE'S STORE CO.

166 P. 626

97 Wash. 387

McQUEEN v. PEOPLE'S STORE CO.

No. 13867.

Supreme Court of Washington

July 25, 1917

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by Myrtle McQueen against the People's Store Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions to dismiss.

Bates Peer & Peterson, of Tacoma, for appellant.

Teats Teats & Teats, of Tacoma, for respondent.

MORRIS J.

The People's Store Company is a corporation conducting a large department store at Tacoma, employing among others William Buhre as a driver of one of its automobile trucks used in the delivery of merchandise to its customers. The duties of this driver are such as usually appertain to a position of like character requiring him to load the truck at the store with goods and parcels and deliver them to customers in different parts of the city. He had as an assistant a man named Larson, whose duty it was to go with him and carry the parcels into the different homes. On the day of the accident Myrtle McQueen and a girl friend, acquaintances of Buhre and Larson, met them at Sixtieth and K streets and engaged them in conversation for a short time. Some time later Buhre and Larson were at Fifty-Sixth and O streets, when the two young ladies again appeared, and again the parties engaged in conversation. Miss McQueen noticed her brother-in-law in front of his home a short distance from the place where the automobile was standing, and, saying to Buhre, 'There is my brother-in-law,' she went around on the opposite side of the truck to conceal herself from her brother-in-law's view. The young ladies then sat down upon the running board of the car, a long step about 12 inches wide and about 12 inches from the ground running lengthwise of the car. Upon Larson's return to the car from the delivery he had been making Buhre said to the young ladies: 'Sit still, girls, and I will drive across the street.' The car was then driven across Fifty-Sixth street and onto O street. Fifty-Sixth street was paved. O street was not. As soon as the car left the pavement on Fifty-Sixth street, plaintiff states, seeing she was in a dangerous situation, she called upon Buhre to stop the automobile. He either did not hear her or did not heed her, and after going a short distance she either jumped or was thrown from the car, the automobile passing over one of her feet, causing the injuries complained of. Appellant made the usual motions looking to a dismissal of the action and for directed verdict and judgment, all of which were denied, and a verdict returned for respondent in the sum of $666.

Appellant presents two questions: First, that in inviting the respondent to remain upon the running board of the truck while he crossed the street and in conveying her to the place where the accident occurred Buhre was not acting within the scope of his employment, thus exempting the appellant from liability for his act; second, that respondent was guilty of contributory negligence. While no decisive test can be given for determining whether or not a given act is within the scope of a servant's employment, it is apparent from all the authorities that the act complained of must have been done while the servant was engaged in doing some act under authority from his master, not that while engaged in the act he is employed in the master's business, but the act must have been in the furtherance of the master's business and such as may be fairly said to have been either expressly or impliedly authorized by the master. Wood, Master and Servant (2d Ed.) § 307. When the servant is authorized to do the act, the master is liable for its...