Mulvehill v. Bates

• Decision Date: 07 January 1884
• Citation: 17 N.W. 959,31 Minn. 364
• Parties: Patrick Mulvehill v. Joseph W. Bates
• Court: Minnesota Supreme Court

17 N.W. 959

31 Minn. 364

Patrick Mulvehill v. Joseph W. Bates

Supreme Court of Minnesota

January 7, 1884

Appeal by defendant from a judgment of the municipal court of St Paul. The case is stated in the opinion.

Judgment affirmed.

Louis M. Hastings, for appellant.

To render a master liable for the negligence of his servant, the injury complained of must have occurred while the servant was acting in the scope of his employment, and in the actual course of his employment. Mitchell v. Crassweller, 13 C. B. 237; Storey v. Ashton, L. R. 4 Q. B. 476; Rayner v. Mitchell, L. R. 2 C. P. Div. 357; Douglass v. Stephens, 18 Mo. 362; Moore v Sanborne, 2 Mich. 519; Courtney v. Baker, 37 N.Y.S. 249; Sheridan v. Charlick, 4 Daly, (N. Y.) 338; Lee v. Nelms, 57 Ga. 253; Cavanagh v Dinsmore, 12 Hun, 465; Stone v. Hills, 45 Conn. 44; Mott v. Consumers' Ice Co., 73 N.Y. 543.

O'Brien & Wilson, for respondent, cited Venables v. Smith, L. R. 2 Q. B. Div. 279; Patten v. Rea, 2 C. B. (N. S.) 606; McManus v. Crickett, 1 East, 106; Joslin v. Grand Rapids Ice Co., 15 N.W. 887; S. C. 50 Mich. 516.

OPINION

Mitchell, J.

This action was brought to recover damages for the alleged negligence of defendant's servant in driving over and injuring the child of plaintiff. The important question in the case is whether, at the time the injury was inflicted, the servant was acting within the scope of his employment, or had turned aside from that employment, and was acting exclusively for himself as master pro tempore. All the evidence bearing on this point is "that Esterbrook (the servant) drove an express wagon regularly for defendant. He picked up business on the street." On the day in question "he had gone over to West St. Paul to deliver a trunk, then went a block and a half in a direction away from his return route to the city (St. Paul) and got a load of poles for himself, (which he afterwards sold for himself,) and was taking the poles home when he ran over the boy." Defendant testifies that "hauling the poles was not for him; that he knew nothing of it until at the trial." We understand from this that the horse and express wagon were intrusted, generally, to the driver, with authority to secure such business as he could, make his own contracts, and drive wherever it might be necessary to go, in order either to receive or deliver any articles which he might be employed to transport. Had some one employed him to transport a load of poles, it seems to us that there would have been no doubt but that, in going for them and in conveying them to their destination, he would have been acting within the scope of his employment, for that was just the kind of business he was employed to perform, as much as in transporting trunks or any other kind of property. The fact that it was his own property which he was carrying on this occasion seems to us immaterial. If he had any articles which he himself desired conveyed by an express, there was no reason why he might not transport them in his master's wagon as well as that of third parties, being liable of course, if he did so, to account to his employer for the usual price for such services, the same as if performed for some one else. He was intrusted, generally, with the wagon to hunt up just such work wherever he could find it, and with authority to carry articles for whomsoever he saw fit. Whether he accounted to the master for the value of the time occupied in transporting his own property is immaterial, that being a matter entirely between themselves.

Counsel for appellant, in his able and ingenious argument, cites in support of his position a number of cases, of which Mitchell v. Crassweller, 13 C. B. 237, is a sample, in which it is held that where the driver of the master's vehicle turns wholly aside from the master's employment and engages in an independent journey, wholly foreign to his employment, and for a purpose exclusively his own, the master is not liable for his acts. We have had occasion recently (in Morier v. St Paul, M. & M. Ry. Co., ante, p. 351) to consider and indorse the doctrine of these cases. But this class of cases is clearly...