Sauriolle v. O'Gorman

CourtSupreme Court of New Hampshire
Citation163 A. 717
PartiesSAURIOLLE v. O'GORMAN et al. SAME v. SHEA et al.
Decision Date04 October 1932

Exceptions from Superior Court, Hillsborough County; Sawyer, Judge.

Separate actions by Francis Sauriolle, administrator de bonis non of the estate of Herman McCarthy, deceased, against William S. O'Gorman and another, and against George C. Shea and another. Case transferred on defendants' exceptions.

Exception in action against William S. O'Gorman and another overruled, and exception in action against George C. Shea and another sustained.

Action on the case, to recover for the death of the plaintiff's intestate, caused by collision with an automobile of the defendant, O'Gorman, driven by his chauffeur, the defendant Shea. At the close of the evidence, and subject to the plaintiff's exception, a verdict was directed for the defendant O'Gorman. The jury returned a verdict for the plaintiff against Shea. Judgment was entered thereon and remains unsatisfied.

Action of debt, on the judgment against Shea as principal, and the defendant Fidelity & Guaranty Company, as trustee. The car was covered by a motor vehicle liability policy issued by said company purporting to insure the owner and additional assured as defined therein. The company had appeared generally and conducted the defense for both defendants in the action at law until after the verdict against Shea, when it withdrew its appearance for him. Upon consideration of the declaration, the transcript of the evidence in the action at law, the insurance policy, and deposition of the trustee, the court ruled pro forma that the company "is liable for the payment of the verdict against Shea," to which ruling the company excepted.

Transferred by Sawyer, C. J.

Shea, employed in the dry goods store of O'Gorman at Manchester, was directed by his employer to procure the latter's car from the garage where it was kept, and go to Concord on an errand. Shea was supposed on his return to take the car back to the garage and report for duty at the store. At Concord he met a school friend whom he invited to ride back with him. They returned to Manchester by the Daniel Webster highway as far as Union street, and thence proceeded southerly on that street to Manchester street which crosses Union at right angles. The garage was situated on the north side of Manchester street, about one and a half blocks westerly of its junction with Union. So far, Shea had proceeded on a direct route toward his destination. Instead, however, of turning westerly on Manchester, Shea continued southerly on Union, past Merrimac, Laurel, and Central streets, to Lake avenue. The course of these streets was at right angles with Union. At Lake avenue he turned westerly planning to cross Pine street, stop at the corner of Chestnut street for his passenger to alight, and then turn northerly on Chestnut and proceed to Manchester street and thence to the garage. The total distance of the planned detour was a little over a half mile. Shortly after turning onto Lake avenue, he collided with and fatally injured the plaintiff's intestate. Shea intended to return the car to the garage, and did so after the accident. His sole purpose in passing Manchester street and digressing by Union, Lake, and Chestnut streets was to discharge his guest at a point nearer her destination.

Shea occasionally drove the car on errands when directed to do so, but had no general authority to use the car. O'Gorman, asked if Shea made any practice of taking passengers, testified: "That was the first case I knew of, except there was one time I told him to take some one; he was taking a friend of mine down to * * * Lowell to catch a night train * * * and I told him it might be a pretty good idea to get some young lady to ride down with him and I think he did." The witness, upon cross-examination, stated that he did not know whether this incident was before or after the accident, but gave it as his best judgment that it was after. Other facts will appear in the opinion.

Henry B. Stearns, Osgood & Osgood and Clinton S. Osgood, all of Manchester, for plaintiff.

O'Connor & Saidel and M. Saidel, all of Manchester, for defendants.


1. A verdict was properly directed for the defendant O'Gorman. He was liable only if Shea, at the time of the accident, was engaged in doing what he was employed to do. Danforth v. Fisher, 75 N. H. 111, 71 A. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670. The limits of his authorization, his purpose and conduct are undisputed. His employment on his return trip was to take the car from Concord to the master's garage on Manchester street. When by direct route he had come to a point on that street within less than two blocks of his destination, instead of turning to the garage, he embarked on a detour by Union street, Lake avenue, and Chestnut street, a total distance of ten blocks, for the sole purpose of discharging his passenger guest at a point nearer her home. While making this detour, he was not engaged in what he was employed to do. The delivery of his guest was no part of his master's service. Shea was using the instrumentality of his employer for a purpose of his own choosing outside the scope of his employment. Danforth v. Fisher, supra; Roulias v. Crafts, 81 N. H. 107, 124 A. 194; Moulton v. Langley, 81 N. H. 138, 142, 124 A. 70; Groatz v. Day, 81 N. H. 417, 418, 128 A. 334; Shefts v. Free, 105 N. J. Law, 577, 146 A. 185; Wilson v. Mason, 105 N. J. Law, 540, 147 A. 235; Mathis v. Hirsch Compound Roofing Company (1931) 153 A. 700, 9 N. J. Misc. 335. See Dearborn v. Fuller, 79 N. H. 217, 107 A. 607; Richard v. Amoskeag Mfg. Co., 79 N. H. 380, 109 A. 88, 8 A. L. R. 1426; Defoe v. Stratton, 80 N. H. 109, 114 A. 29. See Expl. note, pp. 15-18, Am. Law Inst. Restatement Ag'y. (Tent.) 459.

The plaintiff contends that the master's consent to the deviation could be implied from the proof of the master's permission on a single occasion to take a young lady for company on a night ride to Lowell. He concedes that this evidence is insufficient to establish a custom, but claims that the master must have understood that the servant, in view of that incident, would believe he was authorized to take young lady friends on his business trips and perforce to make reasonable deviations to secure their presence. It is not perceived how such understanding and belief would help the plaintiff in this phase of his case. The claim here is based upon the doctrine of respondeat superior. The vicarious liability of the master for negligent acts of the servant under this doctrine is limited by the bounds of the employment (Danforth v. Fisher, supra; Morin v. People's Wet Wash Laundry Company, 85 N. H. 233,156 A. 499; Fletcher v. Meredith, 148 Md. 580, 582, 129 A. 795, 45 A. L. R. 474; Standard Oil Co. v. Anderson, 212 U. S. 215, 220, 221, 29 S. Ct. 252, 53 L. Ed. 480), which are not to be extended on remote implications (La Fond v. Richardson, 84 N. H. 288, 149 A. 600). Shea had temporarily stepped outside these bounds. The departure was substantial and admittedly for an object that did not concern the master. It had no connection with his business. In making it, Shea was not actuated by any purpose to serve the master. If it were conceded that the Lowell incident antedated the accident, and carried an implied consent to take lady friends with him whenever he chose, and by extension to make use of the master's car on detours to receive and discharge them, it would not follow that the master would be responsible for his negligent conduct while on such side trips. While using the car on such diversions, his status would be that of a bailee, and not that of a servant. The mere fact that the car was loaned to him by one who stood in the relation of master did not enlarge the scope of his employment so as to charge his benefactor with the consequences of his negligence while making use of the borrowed car solely for his own purposes. His negligence while serving himself or a third party would not be imputable to his master. Cain v. Wickens, 81 N. H. 99, 100, 122 A. 800, 30 A. L. R. 1246; Groatz v. Day, supra; Reilly v. Connable, 214 N. Y. 586, 590, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; Am. Law Inst. Restatement Ag'y. (Tent.) § 463, a, b. See 30 A. L. R. 1248. It is well settled by the authorities that the owner is not liable for the negligent operation of his automobile while being used by his employee in the latter's business although the owner has consented to such use. .22 A. L. R. 1400; 45 A. L. R. 480.

The argument is advanced, however, that, regardless of whether Shea had implied authority to take his friend in the car, it could be found that he was acting in the course of his employment. The claim is that, because he had it in mind to carry out the direction of his master to return the car to the garage, and intended to follow a continuous route, stopping only long enough to let his passenger alight, his private errand was therefore merely "incidental to the purpose of the general duty"; that his intent to leave his guest short of her ultimate destination tended to show that he was bent primarily on his master's business; and that, so long as he was pursuing his dominant purpose to return the car to the garage, he was within the scope of his employment. The difficulty with this argument is that the evidence conclusively shows a temporary abandonment or suspension of his purpose to go to the garage until he should have accomplished a purpose distinctively his own, and entirely disconnected with his master's service. During this departure from his line of duty, his dominant purpose was the delivery of his guest at the point intended. It may be conceded that the relative dominance of a servant's purposes may be of importance where, at the time of an accident, he was performing service of a dual character which could be found to inure at the same time to the advantage of...

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