Nelson v. Nelson

• Decision Date: 28 February 1969
• Docket Number: No. 41300,41300
• Citation: 282 Minn. 487,166 N.W.2d 70
• Parties: Phyllis Jean NELSON, Appellant, v. Forrest LeRoy NELSON, et al., Defendants, Hardy Salt Company, Respondent.
• Court: Minnesota Supreme Court

Page 70

166 N.W.2d 70

282 Minn. 487

Phyllis Jean NELSON, Appellant, v. Forrest LeRoy NELSON, et al., Defendants Hardy Salt Company, Respondent.

No. 41300.

Supreme Court of Minnesota.

Feb. 28, 1969.

Syllabus by the Court

1. An employer is not relieved from liability for the employee's negligence merely because the employee is using his own vehicle at the time a tort occurs. The employer is not liable where at the time of the injury the employee is not acting within the scope of his employment, and a substantial detour or deviation in time as well as place may relieve the employer from liability. But where the deviation is only slight or incidental, or where the deviation has ended, the employer may be liable for an injury occasioned by the negligence of the employee while acting within the scope of his employment.

2. Where the evidence is disputed as to whether an employee is within the scope of his employment at the time of the commission of the tort, a fact question for the jury is presented. In determining that issue, it is necessary that the employee's conduct at the time of the commission of the tort must be actuated at least in part by a desire to serve the employer in order for him to be within the scope of his employment.

3. A motion for a directed verdict admits the credibility of the evidence for the adverse party and every inference which may be fairly drawn therefrom. On such a motion the evidence must be viewed in the light most favorable to the party opposing the motion.

4. The credibility of a witness is not necessarily destroyed so as to render his entire testimony unworthy of belief by the fact that he has given a series of statements which may vary in specific detail. It is not for the court to accept a part of the testimony of a witness and reject the remainder. The credibility of witnesses is within the province of the jury.

Nord, Webster & Brennan, Joseph H. Rivard, St. Paul, for appellant.

Swanson & Christoffersen, St. Paul, for respondent.

OPINION

MURPHY, Justice.

This is an appeal from an order of the district court denying a new trial after a directed verdict for defendant. The case involves liability of an employer for damages alleged to have been sustained by the wife of an employee while a passenger in her husband's automobile. The trial court was of the view that the husband was not acting within the scope of his employment when the injuries were sustained.

From the record it appears that plaintiff, Phyllis Jean Nelson, is the wife of Donald C. Nelson, who at the time of the accident was a salesman employed by defendant Hardy Salt Company. While a desk in the office of his employer in Minneapolis was available for his use, for the most part he worked out of his home in White Bear Lake. His duties were to call on the trade, sell salt, and otherwise advance his employer's interests. His appointments were normally prearranged either by the company or himself. On a normal day he would not go to the company's office but would go directly from home to his first call. He received his mail at home and kept his files and records there. He used his personal automobile in his work. He was compensated on a commission basis, but the employer paid him $5 a day for gasoline and $12 a week as depreciation on his automobile.

It appears from the record that on the morning of February 22, 1965, the employee had an appointment to call on a customer, Lindsay Soft Water company, located on Arcade Street in St. Paul, Minnesota. His wife, who was 8 months pregnant, had an appointment with her doctor in downtown St. Paul on the same morning. Nelson's version of the facts was that on this particular morning he intended to call at the offices of the Lindsay company where he would leave his wife and that she would continue on to the doctor's office by bus. On the way from White Bear Lake to St. Paul, an accident occurred resulting in serious injuries to Mrs. Nelson. It is agreed that the trial court was correct in determining that the accident was caused by the negligence of plaintiff's husband. It is not disputed that the shortest route from plaintiff's home at White Bear Lake to the doctor's office in the Medical Arts Building in St. Paul would take the Nelsons along Arcade Avenue where the Lindsay company has its place of business.

During the course of the trial, on cross-examination of Donald Nelson, it developed that he had on previous occasions given versions of the events of the morning which were inconsistent, if not contradictory. In his original report to his insurance company, he stated that the purpose of the trip was to drive to St. Paul so that his wife might keep her weekly doctor's appointment. In a subsequent deposition, he indicated that he intended to take his wife to the doctor and then return to the Lindsay company for his appointment. In a later deposition he said that he might have his wife take a bus from the Lindsay company location if time would allow. At the trial he testified that it was his plan and intention to stop at the Lindsay company to make a business call and that his wife would proceed from there by bus.

The trial court concluded from these varying accounts that the testimony of Mr. Nelson was inherently improbable and that, at the time of the accident, he was not acting for his employer but was engaged in a family errand. In oral argument, counsel for defendant contends that the trial court was correct in determining that the testimony of Nelson was inherently improbable, arguing that it would not be likely to expect Nelson to leave his wife and 4-year-old daughter at the Lindsay office to wait for a bus on a cold morning, that no arrangements were made for Mrs. Nelson's return trip home, and that he did not make a claim for gasoline allowance on the day of...