Snyder v. Eriksen

• Decision Date: 11 June 1921
• Docket Number: 23,220
• Citation: 198 P. 1080,109 Kan. 314
• Parties: M. A. SNYDER, Appellee, v. C. J. ERIKSEN, Appellant
• Court: Kansas Supreme Court

198 P. 1080

109 Kan. 314

M. A. SNYDER, Appellee, v. C. J. ERIKSEN, Appellant

No. 23,220

Supreme Court of Kansas

June 11, 1921

Decided January, 1921.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Negligent Driving of Truck by Employee--Employee Acting Within Scope of His Employment--Master Liable for Employee's Negligence. An employee in a furniture establishment who had been employed to do general work in the store and assist other employees in delivering goods, but had not previously been assigned to the duty of driving trucks, went out to the fairgrounds to help a superior employee who had been given charge of assembling and setting up an exhibit, and when the noon hour arrived the employee was directed by his superior to take a motor truck and drive to his home to get his dinner in order that he might sooner return and continue his work. On the way to his dinner he drove the truck in a negligent manner and struck and injured a pedestrian on the street. Held, that he was then acting within the scope of his employment and in furtherance of his employer's business, and that his employer was liable for the negligent injury.

2. SAME--Instructions. The instructions given to the jury examined and held to be without prejudicial error.

3. SAME--Court's Power to Supervise Special Interrogatories and Answers Thereto. It is competent for the court to supervise and shape special interrogatories that are submitted to a jury and it may reject questions that are improper or immaterial and limit the questions to ultimate facts on controverted issues.

4. SAME. The court may also explain the questions and instruct the jury as to the law applicable to, them, exercising caution not to express an opinion as to controverted facts and held, that the action of the court in explaining the questions and advising the jury as to the applicable rules of law was not an invasion of the province of the jury.

5. SAME. If the answers returned by the jury are indefinite or incomplete or show a misconception of the questions, the court may, on the application of either party or on its own motion, require the jury to make the answers more definite and complete or to correct manifest errors in the answers.

6. SAME--Amendment of Petition at Close of Evidence--No Error. No error was committed in permitting the plaintiff to amend his petition at the close of defendant's evidence so as to state in more detail an element of the negligence charged against defendant.

7. SAME--Damages Not Excessive. Under the evidence it is held that the damages awarded are not excessive.

George K. Melvin, and R. E. Melvin, both of Lawrence, for the appellant.

J. B. Wilson, and A. C. Wilson, both of Lawrence, for the appellee.

OPINION

JOHNSTON, C. J.:

A motor truck owned by the defendant, C. J. Eriksen, and driven by Vernon Pettit, his employee, was driven upon a sidewalk, running down and severely injuring the plaintiff, M. A. Snyder, who was walking upon the sidewalk. She recovered a judgment for $ 500 and the defendant appeals.

Defendant was a dealer in household goods in Lawrence, and had several employees, among whom was Pettit who was principally engaged in blacking stoves and assisting other employees in the delivery of goods. On the day of the accident the employees of defendant were engaged in assembling and setting up an exhibit of defendant's goods at the fairgrounds near the city. For that purpose they used two trucks. One of them was driven by an employee, Crossgrove, and the other by McPherson. Pettit went out to the fairgrounds in the truck driven by McPherson, and after working for a short time, McPherson and Pettit returned to the city for other goods, McPherson driving the truck. When they arrived at the store McPherson found customers waiting for attention and he directed Pettit to drive the truck loaded with exhibits back to the fairgrounds, and this was done. When the noon hour arrived, Crossgrove, who was then in charge of the exhibits, said to Pettit, "as you have a long distance to go to dinner, you had better take the truck so you will get back to work sooner." He took the truck and while on the way to dinner he had difficulty with the steering gear and was unable to guide or control the truck. He ran the truck against a wagon and then over the curb and up on the sidewalk, knocking down and running upon the plaintiff who happened to be walking there.

The charges of negligence were the driving of the truck at a dangerous rate of speed on the wrong side of the street, in failing to stop the truck when it approached the wagon in the street, and the sidewalk, and the further negligence of providing and using a truck with a defective steering gear which rendered it uncontrollable at times. There was abundant evidence to sustain the charge of the negligent handling of the car, but the principal contention of the defendant is that the evidence failed to show that the defendant was responsible for the acts of Pettit while driving the truck. The claim is that Pettit was not acting within the scope of his employment in taking and driving the truck to dinner, but was acting for himself and in pursuit of his own purposes. The contention is that the evidence does not show that the defendant ever authorized him to use the truck for any purpose at any time or under any circumstances and that any direction given Pettit by Crossgrove or McPherson was without authority, and that no liability could arise against him for the negligent acts of Pettit. The turning point in the case is whether Pettit was acting within the scope of his employment while driving the car at the time of the accident or, in other words, was he acting in furtherance of his master's business as distinguished from his own private business or pleasure. Where one person is injured by the negligence of another he ordinarily seeks and is entitled to indemnity from the one whose negligence caused the injury. Where the one who directly inflicted the injury is the servant of another and was at the time acting under the directions of the master or engaged in his business and in furtherance of his interests, the injured person may look beyond the direct author of the wrong and require the master to respond for the damages sustained. It is fundamental that the owner of an automobile is not required to respond in damages for injuries caused by the negligence of the driver unless the driver was the servant or agent of the owner, and was at the time acting within the line of his duty and in furtherance of the master's business. ( Halverson v. Blosser, 101 Kan. 683, 168 P. 863.) Here Pettit was the employee and servant of the defendant. He was in the line of duty when he went out to the fairgrounds to assist Crossgrove in placing the exhibit, and when under the direction of McPherson he drove the truck loaded with goods from the store to the fairgrounds. He was within the scope of his employment when he assisted Crossgrove in setting up the exhibit. When the noon hour arrived a somewhat different situation arose. If in going to and getting his dinner he was using his own time to accomplish his own ends and was not acting under the direction of the master or in furtherance of his business, the defendant was not responsible for the negligence of Pettit. If he had taken the truck without permission and had occasioned the injury to plaintiff while on a mission to get his dinner or on an errand purely personal to himself, the defendant would have been free from liability. It cannot be said, however, that Pettit was acting for himself and exclusively pursuing his private and personal ends. Neither can it be said that his use of the truck on the occasion had no connection with his master's business. In the first place he was directed by Crossgrove to take the truck on the trip during which the injury was inflicted. Crossgrove was in charge of the work and Pettit was acting under his direction. It was as much his duty to observe the order of Crossgrove as if it had been given by the defendant himself. The authority to take the truck was not given wholly for the convenience and personal benefit of Pettit, but he was directed to take it in order to expedite the work at the fairgrounds. The direction was given and the truck used not only upon an express order but also in order that there might be an earlier return to defendant's service and in furtherance of his interests. It therefore had a close connection with the defendant's business and was done to facilitate the work of setting up the exhibit. True, it was in part to accommodate the servant but the truck was taken and used in part at least for the accommodation of the defendant and the promotion of his business. Defendant cites and relies on Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016. The action was brought to recover for injuries negligently inflicted by a chauffeur, while...