Symington v. Sipes

• Decision Date: 25 June 1913
• Citation: 88 A. 134,121 Md. 313
• Parties: SYMINGTON v. SIPES.
• Court: Maryland Court of Appeals

88 A. 134

121 Md. 313

SYMINGTON v. SIPES.

Court of Appeals of Maryland

June 25, 1913

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

Action by Frederick G. Sipes against Pewers Symington, and another from a judgment in favor of plaintiff, defendant Symington appeals. Reversed and dismissed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.

W. S Symington, Jr., of Baltimore, for appellant.

URNER J.

The appellant placed his automobile and chauffeur at the disposal of his brother for a trip from Baltimore to Virginia. After being used for that purpose the car was brought back to Baltimore by the chauffeur alone, under instructions to take it direct to Griffin's garage. Upon reaching the suburbs of the city in the early afternoon, instead of obeying his orders by proceeding to the destination mentioned, he diverted himself during the remainder of the day by driving around to various roadhouses and saloons, accompanied part of the time by five of his acquaintances, who joined him at one of the places thus visited. While returning with his companions about 9 o'clock in the evening to the point from which he started on this excursion, he negligently ran the car into the rear of the appellee's buggy, and caused the injuries for which recovery is sought in this action. His itinerary is thus described by the testimony: From Arlington in the suburbs he drove to the Seven Mile House and back then over to Park Heights avenue, to the Suburban and Gray's Road House; then to the Five Mile House on the Reisterstown road, where he found the friends referred to, and also a blacksmith, whom he drove to the Maryland General Hospital to be treated for an injured leg; then back to the Five Mile House; then to Brodie's on the Liberty road; then to Forney's saloon beyond Mt. Hope Gate; then back towards Arlington along the Reisterstown road, at which time and place the accident occurred; and then to the garage of the Green Spring Valley Club, where the automobile was left for the night. A judgment was recovered by the appellee against the owner and chauffeur jointly. The appeal is by the owner alone; a writ of summons and severance having been granted upon his application.

Upon the facts we have recited, as to which there is no dispute, we have no hesitation in deciding, as a matter of law, that the appellant is not liable in this action, and that the instruction he proposed to that effect should have been granted. The proof makes it perfectly clear that, even if the chauffeur be regarded as the servant of the appellant rather than of his brother, during the period in question, he was not at the time of the collision acting within the scope of his employment, but was using the automobile contrary to the express orders to which he was then subject, and exclusively for his own individual purposes. The decisions are unanimous in holding that under such circumstances the servant is solely responsible for the consequences of his negligence.

In Colwell v. Ætna Bottle & Stopper Co., 33 R.I. 531, 82 A. 388, a chauffeur was directed by the owner of an automobile to drive it to a garage, but used the car to take a coemployé home and to go for his supper, and while so doing collided with another automobile. Upon this state of facts it was held that the chauffeur was not acting in the course of his employment at the time of the accident, and that the owner was not liable. In discussing the conduct of the chauffeur the court said: "When he first arrived at the garage on Bradford street it was his duty, then, to take the automobile into the garage and wash it and put it up for the night. That was all that he was instructed or expected to do. He had no authority, either express or implied, to use the machine for the benefit of another employé, or for his own convenience in going to get his supper. His use of the automobile from the time he left the Bradford street garage and during the whole circuit that he made from that point to Potter's avenue and from there to the restaurant on Westminster street, and from there back to the Bradford street garage, was unauthorized and beyond the scope of his employment."

In Steffon v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227, the accident for which the suit was brought happened while the defendant's chauffeur was alone in the automobile and was going to his home for dinner. Under his contract of employment the chauffeur was to provide himself with meals. He had previously used the car a number of times in going to his home for that purpose, but without the knowledge of his employer. The relation of master and servant was held to have been suspended at the time of the accident, and the defendant owner was exempted from liability.

The case of Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670, is thus stated by the court: "At 5 o'clock on the day of the accident, McCauley, who was employed by the defendant as a chauffeur, took the automobile from the place where it was kept, drove to the defendant's store, and awaited orders. He was told to get his supper and to be at the New City Hotel with the automobile at a quarter before 7 o'clock. After he had eaten supper, instead of taking the car to the hotel according to the defendant's order, he drove to West Manchester, a mile or two distant from his boarding place, and in an opposite direction from the hotel, for the purpose of calling upon a friend. At the time of the accident he had finished his call and was on his way to the hotel. Although the evidence shows that McCauley was the defendant's servant, and that he drove the automobile against the plaintiff's horse and caused the animal to run away, it also shows that he took the automobile without the defendant's permission and went with it on an errand of his own--that he was acting for himself, and not for the defendant, at that time. As it cannot be found from the evidence that McCauley was doing what he was employed to do at the time the plaintiff was injured, there was no error in the order of nonsuit."

In Northup v. Robinson, 33 R.I. 496, 82 A. 392, the facts as narrated in the opinion were as follows: "The plaintiff was thrown from his bicycle by a collision with an automobile, owned by the defendant, and operated by his chauffeur. The chauffeur started out that morning from the defendant's house to go to the post office and express office at Wakefield for his employer. After leaving the post office, instead of going to the express office or returning to the...