Thomas v. Lockwood Oil Co.

• Decision Date: 03 May 1921
• Citation: 182 N.W. 841,174 Wis. 486
• Parties: THOMAS v. LOCKWOOD OIL CO.
• Court: Wisconsin Supreme Court

174 Wis. 486

182 N.W. 841

THOMAS

v.LOCKWOOD OIL CO.^a1

Supreme Court of Wisconsin.

May 3, 1921.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Hubert Thomas, administrator of the estate of Michael Thomas, deceased, against the Lockwood Oil Company. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Plaintiff, the father of Michael Thomas, a boy about 13 years of age at the time of his death, was appointed administrator and brought this action against the defendant to recover damages for the death of said son.

The defendant corporation was engaged in the business of selling gasoline and oil in the city of Racine. It used a number of automobile trucks for delivery purposes. On July 17, 1920, one such automobile truck was being operated by Arthur Finch, then about 19 years old, having had some previous experience in driving motor trucks, and who had commenced his service for the defendant on that day. He made a round trip in the forenoon, and had finished his assigned afternoon delivery about 5 o'clock at a junk yard on the north side of the city. At that time he had a barrel of oil still on the truck which was to be taken back. Shortly after leaving the last point of delivery he met an acquaintance named Jordan who proceeded with him. The accompanying map shows the location and names of the streets that will be referred to in this statement of facts.

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Defendant's place of business was near the corner of Racine and Fourteenth streets close to the tracks of the Chicago, Milwaukee & St. Paul Railway. A school referred to in the testimony was on Center street between Tenth and Eleventh streets.

After reaching Sixth and Mead streets Finch drove south on Mead, east on Eighth to Washington avenue, which on all the portions shown on the map was occupied by the double tracks of a street railway. He proceeded southwesterly on Washington avenue to Ninth, east on Ninth to Center street, thence south to Eleventh, thence west to Franklin, thence north on Franklin to Tenth street, west on Tenth again to Center, then south on Center.

A little near the center and on the west side of Center street between Tenth and Eleventh a pile of brick extended out about 10 feet from the curb. Michael Thomas, riding on a bicycle south on Center street, was just going around the pile of brick when he was struck and almost instantly killed by defendant's truck.

Arthur Finch, defendant's driver and employé, was not called as a witness upon the trial by either side. He was examined adversely by plaintiff prior thereto under the provisions of section 4096, Stats., and on the trial the plaintiff offered in evidence part of the testimony so taken, among other things, the following:

“Q. Where were you going after you left the Fox junk yard? (This was the last place of delivery that afternoon.) A. I was going home. Q. Back to the garage? A. Yes.”

And again:

“Q. So when you left the Fox's junk yard you then started back to the garage; is that right? A. Yes.”

That he permitted Larson to take his seat at the driving wheel and operate the truck when they were about the middle of the block on Tenth street between Franklin and Center, and that Larson continued to drive until the time of the accident. That his only purpose in letting Larson drive was that he, (Finch) might go back and move the barrel to the rear on the truck, and that there was oil dripping off the truck, the barrel was dripping, the transmission was hot, and it was smoking. That he had never permitted any one else to drive the truck other than Larson, and had been given no instructions by the company with reference to any one else being permitted or not to drive.

After plaintiff rested his case defendant offered in evidence by way of defense certain portions of such examination. To such offer plaintiff's counsel objected, basing the objection upon the portion of subdivision (2) of section 4096, Stats., quoted in the opinion. The objection was overruled, defendant's counsel then offered from such deposition Finch's testimony as to his procedure after reaching Ninth and Center streets, and also that to the effect that he thought it was then too early to go back to the plant; that if he got there too early they would send him out with another load, so he determined to ride around the school to see his girl, living on Franklin street; that she was not seen then, and he went around again and got halfway around and Jordan asked him to let him drive the truck; that he (Finch) then went back on the truck to move the barrel to the end of it so that when they got back to the garage they could get it off quickly and he could get home; that the girl in question was one with whom he had just got acquainted; that he did not know her last name; that he might have gone south on Franklin from Tenth street (this, it should be noted, would have kept him going south on Franklin instead of making the longer turn down Center and Eleventh); that he made up his mind to turn over to get onto Franklin street when he came up as far as Eleventh; that he made up his mind to go around to see his friend before he left the junk yard; that the way he took was the shortest way to get there; that all the time he came down to West street and took Larson aboard he expected to go up and see the girl.

Over plaintiff's objection defendant was permitted to read portions of Finch's examination by defendant's counsel in substance as follows:

“Q. Now you didn't want to get back to the garage of the Lockwood Oil Company, did you, until pretty near 6 or a quarter of 6? A. No. Q. Why didn't you want to go back to the Lockwood Oil Company? A. To go over to see my girl. Q. Was there any other reason why you didn't want to get back to the garage? A. Send me out with something else if I got back too quick. Q. So you didn't want to get back so early you might run the chance of getting sent out again; isn't that right? A. Yes. Q. When you were at Fox's junk shop you made up your mind you would kill time, we will say, by going to see your girl before you went back to the garage; isn't that right? A. Yes.”

And also the following:

“I intended to go around the block again after I passed her house and came up to Ninth street. I had made up my mind I didn't want to get back to the garage until 6 o'clock. The accident happened about 5:30. I made up my mind at 5 o'clock when at the junk yard to go to see this girl. I did not at any time communicate to Larson my intention to so swing around to see this girl. I thought work stopped at the defendant's at 6 o'clock.”

At the close of the testimony the defendant moved for a directed verdict in its behalf on the following grounds: (1) That under the undisputed evidence there was a departure by Finch from his proper course of returning to the defendant's plant; that he went on a personal mission of his own driving in a direction away from the defendant's premises; that he was intending to go around the block again; that his purpose was to delay in getting back to the place of business so that he would not have to do any more work that day; that he was entirely without the scope of his master's employment, on a personal mission of his own that had no connection directly or indirectly with his duty to his master; (2) on the ground that there was no express or implied authority upon Finch's part to employ or have the services of Larson, and that no emergency existed which made it necessary to have Larson on the car or drive it; (3) that the defendant was in no wise negligent; (4) that upon the undisputed evidence the deceased failed to exercise ordinary care, thereby proximately contributing to his death.

The court granted the motion upon the first of the above grounds. Upon the verdict so directed judgment was entered dismissing the complaint, from which judgment the plaintiff has appealed.

Whaley & Erikson, of Racine, for appellant.

Glicksman, Gold & Corrigan, of Milwaukee (Floyd E. Jenkins, of Milwaukee, of counsel), for respondent.

ESCHWEILER, J. (after stating the facts as above).

Although error was committed in receiving, on defendant's offer, portions of the deposition of Finch taken at plaintiff's instance under section 4096, Stats., as we shall discuss later, nevertheless a consideration of his entire evidence satisfies us that it did not warrant the action of the court below.

[1] To relieve a master from liability to third persons arising from a negligent act of the employé on such a ground as contended for by defendant here, the deviation from the master's service must be so substantial as to amount to a departure therefrom and for purposes entirely personal to the servant. Loomis v. Hollister, 75 Conn. 718, 55 Atl. 561.

[2] Under Finch's testimony, in proceeding from the place of his last delivery, the junk shop, to defendant's garage to go along on Center street was the shortest way he knew. Even were Washington avenue the nearer route, it was subject to street car traffic. He had had no express instructions as to the particular streets to travel. In going as he did down Center street, therefore, he was in the exercise of a discretion which must, in the absence of express directions, naturally rest with a driver of such a vehicle, and while in the exercise of such discretion he is manifestly, so far as that feature of it is concerned, still within his master's service. Mathewson v. Edison, etc., Co., 232 Mass. 576, 581, 122 N. E. 743;McKeever v. Ratcliffe, 218 Mass. 17, 20, 105 N. E. 552;Hayes v. Wilkins, 194 Mass. 223, 80 N. E. 449, 9 L. R. A. (N. S.) 1033, 120 Am. St. Rep. 549;Maloy v. Rosenbaum, 260 Pa. 466, 103 Atl. 882.

[3] The fact that Finch had the purpose of delaying his return to the place of employment in order to avoid being sent out on another errand, a point upon which much stress is laid by defendant, certainly cannot of itself be such a departure from the master's service as to thereby relieve the master. The...