Tyler v. Stephan's Adm'x

• Decision Date: 26 March 1915
• Parties: TYLER v. STEPHAN'S ADM'X. [d1]
• Court: Kentucky Court of Appeals

174 S.W. 790

163 Ky. 770

TYLER v. STEPHAN'S ADM'X. ^[d1]

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Mildred M. Stephan's administratrix against Elizabeth J. Tyler. From judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Fred Forcht and Merit O'Neal, both of Louisville, for appellant.

Joseph Selligman, Selligman & Selligman, and Harry W. Robinson, all of Louisville, for appellee.

CLAY C.

On the night of February 24, 1913, Mildred M. Stephan was struck and killed by an automobile belonging to Elizabeth J. Tyler, and operated by her chauffeur, William Schuman. In this action for damages Emma G. Brown, as administratrix of Mildred M. Stephan, recovered a verdict and judgment for $4,000. Elizabeth J. Tyler appeals.

The facts are these: Mrs. Tyler resides at St. James court between Fourth and Sixth strets, in the city of Louisville. Harry I. Wood lives at Second and Brandeis streets. On the night of the accident Mr. and Mrs. Wood gave an entertainment to which Mr. and Mrs. Tyler and their daughter were invited. About 9:30 p. m. the chauffeur took Mrs. Tyler and her daughter to Mr. Wood's residence. The chauffeur was then instructed to return for Mr. Tyler, which he did. He was then directed to return to Mr. Wood's residence about 12 o'clock for the purpose of taking Mr. and Mrs. Tyler and their daughter back home. Prior to that time Mrs. Tyler had given express instructions always to take the car back to her own garage. Instead of returning to Mrs. Tyler's garage which was only a short distance away, the chauffeur went in an entirely different direction to the eastern part of the city to the Reimers Motor Company's garage, where a friend of his, Tom Gudgel, was employed. While there Gudgel requested Schuman to take him to Third and Hill streets, where Gudgel had to go to get an electric automobile. Schuman at first declined. Gudgel then offered to take Schuman out to Eiler's roadhouse on the Bardstown road and treat to the drinks, provided Schuman would take him to Third and Hill streets. To this arrangement Schuman finally consented. They then got into the automobile and went up Broadway and out the Bardstown road beyond Douglas boulevard, and stopped at Eiler's roadhouse, where Gudgel purchased a coca-cola for himself and a glass of beer for Schuman. They then started back to town with the purpose of going first to Third and Hill streets, in accordance with the arrangement theretofore made. Gudgel says that he was going to Third and Hill and Schuman was going after his folks. The route taken was the direct route to Mr. Wood's. Schuman says that he was going to the southern part of the city for the purpose of taking Gudgel there. It was then a little before 11 o'clock, and too early to go for Mrs. Tyler. He intended to go first to Third and Hill, and then go to Second and Brandeis and wait. After leaving Eiler's roadhouse and reaching a point on the Bardstown road between Bonnycastle and Murray avenues, the accident occurred. The place of the accident was only a few squares from Eiler's and about 2 miles from the Wood residence. Just prior to the accident a street car had stopped and then started. The decedent came from behind the car directly in front of the machine. The machine was running at about 20 miles an hour. It does not appear that decedent had been a passenger on the car. At the time of the accident the muffler was open, and made a noise which could be heard for two squares. No other signal of the approaching machine was given. Schuman further testifies that he made the trip to Reimers' and out to Eiler's without the permission or consent of Mrs. Tyler. He made the trip for his own purposes alone, and not for the purpose of attending to any business for Mrs Tyler. The propriety of the court's action in refusing to direct a verdict in favor of the defendant is the only question which we deem it necessary to consider.

The rule of law applicable to the care and protection of dangerous instrumentalities does not apply. That rule requires the master to exercise a proper degree of care to guard, control, and protect dangerous instrumentalities owned or operated by him, and to respond in damages for an injury incurred by reason of the improper use of such an instrumentality by a servant, though not then engaged in the performance of his duties. The principle on which liability is founded in such cases is the failure of the master properly to keep within his control such dangerous agencies. Manifestly, an automobile which becomes dangerous only when negligently operated cannot properly be placed in the same category with locomotives, dynamite, and ferocious animals. Consequently, the courts have generally rejected this ground of liability. Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L.R.A. (N. S.) 216, 125 Am.St.Rep. 915; Hartley v. Miller, 165 Mich. 115, 130 N.W. 336, 33 L.R.A. (N. S.) 81; Symington v. Sipes, 121 Md. 313, 88 A. 134, 47 L.R.A. (N. S.) 662; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A. (N. S.) 382, 19 Ann.Cas. 1227; McIntyre v. Orner, 166 Ind. 57, 76 N.E. 750, 4 L.R.A. (N. S.) 1130, 117 Am.St.Rep. 359, 8 Ann.Cas. 1087; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L.R.A. (N. S.) 93, 139 Am.St.Rep. 670.

The case is controlled, we think, by the general rules of law governing the relation of master and servant or principal and agent.

The universal test of the master's liability for the acts of his servant is: Was there authority, express or implied, for doing the act? That is: Was it one done in the course and within the scope of the servant's employment? If so, the master will be liable for the act, whether negligent, fraudulent, deceitful, or an act of positive malfeasance. However, the master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only arise when the act done is within the real or apparent scope of the master's business. Hence, when a servant steps outside of his employment to do an act for himself not connected with his master's business, no liability attaches. The reason for the rule is that beyond the scope of his employment a servant is as much a stranger to his master as a third person. In every such case the proper inquiry is: Was the servant engaged in serving his master? If the act be done while the servant is at liberty from the service and pursuing his own ends exclusively, the master is not responsible. C., N. O. & T. P. Ry. Co. v. Rue, 142 Ky. 694, 134 S.W. 1144, 34 L.R.A. (N. S.) 200; Sullivan v. L. & N., 115 Ky. 450, 74 S.W. 171, 24 Ky. Law Rep. 2344, 103 Am.St.Rep. 330; Morier v. St. Paul, M. & M. R. Co., 31 Minn. 351, 17 N.W. 952, 47 Am.Rep. 793.

In the recent case of Lotz v. Hanlon, 217 Pa. 339, 66 A. 525, 10 L.R.A. (N. S.) 202, 118 Am.St.Rep. 922, 10 Ann.Cas. 731, the court said:

"It was essential to a recovery in this case that it be made to appear that the accident from which plaintiff's injury resulted occurred while the person in charge of the automobile was using it in the course of his employment, and on his master's business. * * * But it comes to nothing that the driver was the defendant's servant, if it appears that at the time the accident happened he was not on the master's errand or business. If he were on an errand of his own, then as long as so engaged he did not stand in the relation of servant."

In this case the uncontradicted proof shows that the chauffeur, after taking Mrs. Tyler and the members of her family to the Wood residence, had performed all the service that he was then required or expected to perform. He had received general directions always to return to the garage after the performance of such service. It was then about 2 1/2 hours until he was expected to return for the defendant's family. Instead of following the directions of the defendant and returning to the garage, he took the machine and set out on a journey that had no connection whatever with his master's business. After calling at Reimers' garage in the eastern part of the city, Gudgel suggested that he be taken to Third and Hill streets. The chauffeur declined, but finally consented to do so if Gudgel would set up the drinks. They then left for Eiler's roadhouse, which was about two miles distant from the Wood residence. After getting the drinks they started on their return journey. The entire trip was solely for the chauffeur's own pleasure, and for the accommodation of his friend, Gudgel. The facts show that the chauffeur had no authority, either express or implied, and the trip was not taken for the purpose of furthering the business of the defendant. It was an independent journey exclusively his own. Under these circumstances the authorities uniformly hold that the master is not liable for negligence of the chauffeur. Thus in Colwell v. Ætna Bottle & Stopper Co., 33 R.I. 531, 82 A. 388, 2 N. C.C.A. 430, the chauffeur was directed by the owner to drive the automobile to a garage, but used the machine to take a coemployé home and to go for his supper. While doing so the machine collided with another automobile. In denying liability 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

...