Reddy-waldhauer-maffett Co v. Spivey

• Decision Date: 25 February 1936
• Docket Number: No. 24033.,24033.
• Citation: 53 Ga.App. 117,185 S.E. 147
• Parties: REDDY-WALDHAUER-MAFFETT CO. v. SPIVEY et al.
• Court: Georgia Court of Appeals

53 Ga.App. 117

185 S.E. 147

REDDY-WALDHAUER-MAFFETT CO.

v.SPIVEY et al.

No. 24033.

Court of Appeals of Georgia, Division No. 1.

Feb. 25, 1936.

Rehearing Denied March 31, 1936.

Syllabus by the Court.

1. The owner of an automobile is not liable for injuries caused by his chauffeur's negligent operation of the car at a time when the conduct of the chauffeur took him outside the scope of his employment and when his conduct was a complete departure instead of a "deviation" or "detour" incidental to his employment.

2. Where the servant is not permitted to use the car for his own benefit during the interval before he is required to act for the owner, and the servant uses the car of his employer for his own personal business during this interval, the employer is not liable.

3. Where the employee was acting exclusively for himself and was not acting at all for the master, and did not profess to be acting for the employer, the mere retaining of the servant after knowledge of his tort would not constitute ratification binding the master.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Sylvester Spivey and others against the Reddy-Waldhauer-Maffett Company. To review an adverse judgment, defendant brings error.

Reversed.

Hester & Clark, of Savannah, for plaintiff in error.

Abrahams, Bouhan, Atkinson & Lawrence, of Savannah, for defendants in error.

MacINTYRE, Judge.

Considering the evidence in its most favorable light to the plaintiff's case, it in effect shows that the company owned a Ford truck, for which it furnished all the gasoline. The truck was in general charge of Burnsed, and was used for hauling furniture. At night, the truck was "stored in my [Burnsed's] yard for the purpose of bringing me [Burnsed] back in the mornings and caring for the truck also." Burnsed made no charge to his employer for "storage" of the machine. Burnsed's employer had cautioned Burnsed as to the use of gasoline, and on one occasion Burnsed told Mr. Maffett that he could keep the truck in a garage in town; but the truck was left in Burnsed's care. Burnsed lived on the Louisville road a few miles west of Savannah. Burnsed reach-ed his house about 7 p. m. on the evening of the collision. He stopped there only "a few minutes, " just long enough to pick up his wife, before going about a little less than a mile westward on the Louisville road to his brother's house. He left his brother's house between 10 and 11 o'clock that night. His purpose in getting back to his own house "was to store the car there for the night and then use it in the morning for coming in." On this return trip he ran out of gasoline a very short distance from his house. He was trying to secure gasoline from a passing truck when the collision occurred.

When the servant first arrived at his home from the city of Savannah on the night in point, it was his duty then to park the car and put it up for the night. That was all he was expected to do. He had no authority, either express or implied, to use the machine for his own convenience in going to see his brother in an opposite direction from the city of Savannah. The whole trip from his home to his brother's and return was unauthorized and beyond the scope of his authority. Colwell v. Ætna. Bottle & Stopper Co., 33 R.I. 531, 536, 82 A. 388. When the servant first reached his home and parked the car, this particular journey of the servant from Savannah to his home on behalf of the master was ended, or at least the relationship of master and servant had been for the time suspended. Greenberg v. Lotz Asbestos Co., 109 Conn. 441, 447, 146 A. 834. And, when the servant later re-entered the car on the same night and started to see his brother, he began another and a new journey wholly and exclusively for his own purpose without the knowledge or consent of the master, and at the time of the accident he was on the return portion of his own private independent journey. This trip, neither in the going nor in the returning, was in furtherance of the master's business; and the acts of the chauffeur were not connected with his service, nor were they performed within the scope of his employment. Eakin's Adm'r v. Anderson, 169 Ky. 1, 183 S.W. 217, Ann.Cas. 1917D, 1003; Hickson v. Walker Co., 110 Conn. 604, 149 A. 400, 68 A.L.R. 1044; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A.(N.S.) 382, 19 Ann. Cas. 1227. The defendant in error insists that the case of Atlanta Furniture Co. v. Walker, 51 Ga.App. 781, 181 S.E. 498, is controlling. That case, however, is based on the principle: "That when the servant has temporarily diverged from the course which he should have taken, he may properly be said to have resumed his master's business when he is returning to the proper course." 7-8 Huddy's Cyc.(9th Ed.) 259. But in the instant case the situation is different. Here the servant was not permitted to use the car for his own benefit during the interval before he was required to act for the owner, that is to say, that during the interval when he first parked his car at his home on the night in point and the following morning when the car was to be used "for the purpose of bringing me [Burnsed] back to Savannah, " the servant (Burnsed) was not permitted to use the car for his own purpose; the use of the car during this interval was without the knowledge or consent of the owner and was entirely unauthorized. Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L.R.A. (N.S.) 93, 139 Am.St.Rep. 670. The conduct of the servant took him outside the scope of his employment, and his conduct was a complete departure instead of a "deviation" or "detour" still incidental to his employment. McIntire v. HartfelderGarbutt Co., 9 Ga.App. 327, 71 S.E. 492; Greeson v. Bailey, 167 Ga. 638, 146 S.E. 490; Powell v. Cortez, 44 Ga.App. 205, 160 S.E. 698; Dawson Chevrolet Co. v. Ford, 47 Ga.App. 312, 170 S.E. 306; Selman v. Wallace, 45 Ga.App. 688, 165 S.E. 851; Hickson v. Walker Co., supra.

3. When the conduct of the chauffeur took him outside the scope of his employment and when his conduct was a complete departure, instead of a deviation or detour incidental to his employment, the mere...