Murphy v. Kuhartz

• Decision Date: 01 October 1928
• Docket Number: No. 57.,57.
• Citation: 244 Mich. 54,221 N.W. 143
• Parties: MURPHY v. KUHARTZ.
• Court: Michigan Supreme Court

244 Mich. 54

221 N.W. 143

MURPHY

v.KUHARTZ.

No. 57.

Supreme Court of Michigan.

Oct. 1, 1928.

Error to Circuit Court, Wayne County; Fred S. Lamb, Judge.

Action by William Henry Murphy against William J. Kuhartz. Judgment for defendant, and plaintiff brings error. Reversed.

Argued before the Entire Bench.

Walter M. Nelson, of Detroit, for appellant.

Monaghan, Crowley, Reilley & Kellogg, of Detroit, for appellee.

McDONALD, J.

This action was brought to recover damages for personal injuries which the plaintiff alleges were caused by the negligence of the defendant's servant while acting within the scope of his employment.

The defendant is engaged in the cartage business in the city of Detroit, Mich. At the time of the accident, he owned trucks which were employed in carting furniture for Weil & Co. to various parts of the city. Mr. Metz, who was responsible for the plaintiff's injuries, was a driver of one of these trucks. On the day of the accident, late in the afternoon, the driver had made a delivery of merchandise at 2538 West Philadelphia street, a point about four miles distant from the warehouse of Weil & Co. His duty required him to return to the warehouse and report the deliveries before taking the truck to the garage for the night. His most direct route to the warehouse was south from the last point of delivery, keeping on the west side of Woodward avenue. Instead of returning by that route, he crossed over to the east side of Woodward avenue and proceeded a considerable distance in an opposite direction from the warehouse to his home, where he had dinner. He then began his return to the warehouse. When he reached the intersection of Gratiot and Rivard streets, he ran down the plaintiff and severely injured him. The plaintiff brought suit for damages against the master. On the trial the defense was made that, at the time of the accident, the driver of the truck was not acting within the scope of his employment. The trial judge adopted that view of the case and directed a verdict in favor of the defendant. Judgment was entered on the verdict. The plaintiff has brought error.

It is well settled that a master is responsible for the wrongful acts of his servant committed while performing some duty within the scope of his employment.

When the driver had made the last delivery, it was his duty to return with the truck to the warehouse. He made a long detour from the route he should have taken in order to reach home for his dinner. If while making this detour for his own purpose he had negligently injured the plaintiff, the master probably would not have been liable, for he was then not about his master's business. But when the accident happened, he had accomplished his personal purpose and was well on his way by a direct route to the warehouse. So, assuming that in going to his dinner he temporarily abandoned his master's business, the question is: Had his service been resumed at the time of the accident? At what point on his return in the direction of the warehouse did he again enter upon the master's business?

There are cases which hold that where a servant in driving his master's truck so deviates from his regular route as to suspend the relation of master and servant, it is immediately restored when he starts to return. A leading case of this class is Riley v. Standard Oil Co., 231 N. Y. 301, 132 N. E. 97, 22 A. L. R. 1382. But by better authority it is held that the relation of master and servant is not restored until he has returned to the place where the deviation occurred or to a corresponding place, some place where, in...