Primos v. Gulfport Laundry & Cleaning Co.

• Decision Date: 26 May 1930
• Docket Number: 28731
• Citation: 157 Miss. 770,128 So. 507
• Parties: PRIMOS v. GULFPORT LAUNDRY & CLEANING CO
• Court: Mississippi Supreme Court

128 So. 507

157 Miss. 770

PRIMOS v. GULFPORT LAUNDRY & CLEANING CO

No. 28731

Supreme Court of Mississippi

May 26, 1930

Division A

1 AUTOMOBILES.

Automobile is not "dangerous instrumentality" so as to make employer liable for negligence of employee driving it while acting without scope of employment.

2. MASTER AND SERVANT.

Servant's conduct is within scope of employment only during period not unreasonably disconnected from authorized period.

3 AUTOMOBILES.

Whether laundry truck driver was acting within scope of employment when collision occurred, while he was returning from dance at which he claimed he solicited business, held for jury.

4 AUTOMOBILES.

If employee having collision on way home when driving employer's truck attended dance partly for pleasure and partly for employer's purposes, he was acting within "scope of employment."

5. MASTER AND SERVANT.

Act may be within "scope of employment" although done partly to serve agent's purposes.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by A. Primos against the Gulfport Laundry & Cleaning Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. J. Gex, of Bay St. Louis, for appellant.

A master who intrusts the custody and control of a dangerous appliance or agency to the management of a servant will not be permitted to avoid responsibility for injuries inflicted thereby on the plea that the servant, in the particular act complained of, was acting outside the scope of his employment.

Barmore v. R. R. Co., 85 Miss. 426; Vicksburg Gas Company v. Ferguson, 140 Miss. 557; Crowell v. Duncan, 134 S.E. 576.

If the servant, when he committed the wrongful act, was acting in furtherance of the master's business for which he was employed, the master is liable, although the servant in the doing of the act has, contrary to the instruction of the master, stepped beyond his authority.

Walters v. Stonewall Cotton Mills, 136 Miss. 361; Alden Mills v. Pendergraft, 149 Miss. 595; Gill v. Dantzler Lumber Company, 153 Miss. 559; Crowley v. Cotton Oil Company, 121 Miss. 261; Rahn v. Singer Mfg. Co., 132 U.S. 518, 33 Law Ed. 440; Cusimano v. A. S. Spiess Sales Co., 96 So. 119; Black v. Rock Island A. & T. R. R. Co., 126 La. 105.

Instructions whereby the jury was instructed that if File's primary purpose at the dance was not to solicit business for his master, that regardless of the fact that he went there for that purpose and also for the purpose of enjoying himself, the jury must find for the defendant were erroneous.

39 C. J., page 1297; Barmore v. Ry. Company, 85 Miss. 426; Rahn v. Singer Mfg. Co., 26 F. 916; Cotton Oil Co. v. Crowley, 121 Miss. 296; McKeagh v. Morris (Tex.), 265 S.W. 1059; Cusimano v. A. S. Spiess Sales Co., 96 So. 118.

John Allen Sykes and W. J. Gex, for appellant.

The owner may be liable where his vehicle is being used for his purposes, and in the scope of the driver's employment notwithstanding it is also being used in part for the accommodation of the driver.

42 C. J. 1107.

Carl Marshall, of Gulfport, for appellee.

A commercial motor truck, such as the one involved in this case, is not a dangerous instrumentality.

Vicksburg Gas Company v. Ferguson, 140 Miss. 543, 106 So. 258.

The truck driver in the case at bar was not employed, and it was not within the scope of his function or his employment, to use the defendant's truck for the purpose of attending dances, drinking parties, or other social functions; and when he did make such use of the defendant's truck, he was not acting as an employee of the defendant.

Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258.

The owner may be liable where his vehicle is being used for his purposes and in the scope of the driver's employment notwithstanding it is also being used in part for the accommodation of the driver. But it has been held not sufficient to impose such liability that the driver as incidental to his main purpose in using the vehicle for his own convenience may have in mind some purpose of the owner.

42, C. J., p. 1107.

Argued orally by W. J. Gex, for appellant.

OPINION

Smith, C. J.

The appellant sued the appellee for a personal injury alleged to have been negligently inflicted on him by an employee of the appellee, and, from a judgment denying him a recovery, has brought the case to this court. A request by both parties for a directed verdict was refused.

In the city of Gulfport Eleventh and Thirty-sixth streets cross each other at right angles. On the occasion in question the appellant was driving an automobile along Eleventh street, and a truck owned by the appellee was being driven by one of its employees along Thirty-sixth street. They reached the intersection of the street at about the same time, and the appellant's automobile collided with, or was struck by, the truck. It will not be necessary to set out the evidence relative to this collision, for it is clear from the evidence that the negligence of the driver of the truck who was drunk at the time, contributed to the collision of the two automobiles.

The appellee is a corporation engaged in the laundry and dry-cleaning business, and employed File, the driver of this truck, to solicit articles to be dry-cleaned, deliver them to the laundry, and when dry-cleaned, to return them to the customer. For this purpose he was furnished by the appellee with the truck, which, when not in use, he, File, was to keep at his residence. In other words, the truck was to be continuously in File's possession. File was paid for his services a stipulated weekly salary, and in addition thereto a commission on all business secured for the appellee by him.

According to the appellee, File was authorized to solicit business only during the working hours of the laundry, which ended at four-thirty or five in the afternoon--which is immaterial. Deliveries were to be made by him during the afternoon, and, when finished, his instructions were to cease work for the day.

According to File, who testified on behalf of the appellant, no limitation was placed on his hours of work, and he was authorized to solicit business at any time during the day or night; in which he was corroborated by another of the appellee's solicitors and truck drivers.

Late in the afternoon of the day of the collision File finished making his deliveries, and drove the truck to his residence. Some time early in the night he decided to, and did, go with his wife, in the truck, to a dance, for the purpose, according to his evidence, of there soliciting business for the appellee; and the collision occurred while he was returning from the dance to his residence, between ten and eleven o'clock at night.

In support of his claim to a directed verdict, the appellant says (1) that File was acting within the scope of his employment in driving the automobile when the collision occurred, but, if not (2) the appellee is nevertheless responsible for File's negligence in driving the truck, for the reason that it was a dangerous instrumentality with which he had been intrusted by the appellee.

The second of these contentions is based on Barmore v. R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594. In that case a servant of the railroad company inflicted an injury on another while driving a railroad tricycle, with the custody of which he had been intrusted by the company, at a time when, according to the company's contention, he was acting beyond the scope of his employment. The court held that if a railroad tricycle was a dangerous instrumentality, either per se, or when negligently operated, which fact was for the jury to determine, the company could not escape liability on the ground that when the injury was inflicted the servant was acting without the scope of his employment.

We do not here intend to question the soundness of that decision, in which connection see Am. L. Inst. Re-Statement of Law of Agency (Tent. Draft No. 5) section 463; but it has no application here, for in Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258, it was held that an automobile is not a dangerous instrumentality within the rule announced in the Barmore case. See, also, 2 Blash. Ency. Automobile, L., 1390.

If the appellee's version of the authority vested in File is correct, which fact was for the determination of the jury, he was acting without the scope of his employment when the collision occurred. For the "conduct of a servant is within the scope of employment only during a...