Whimster v. Holmes

• Decision Date: 16 February 1914
• Citation: 164 S.W. 236,177 Mo.App. 130
• Parties: DAVID B. WHIMSTER, Respondent, v. CONWAY F. HOLMES, Appellant
• Court: Kansas Court of Appeals

164 S.W. 236

177 Mo.App. 130

DAVID B. WHIMSTER, Respondent, v. CONWAY F. HOLMES, Appellant

Court of Appeals of Missouri, Kansas City

February 16, 1914

Appeal from Jackson Circuit Court.--Hon. D. E. Bird, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Rosenberger & Reed for appellant.

Hogsett & Boyle for respondent.

OPINION

ELLISON, P. J.

Plaintiff's action is for personal injury received in a collision with defendant's automobile which was being driven by his chauffeur. The judgment in the trial court was for the plaintiff.

It appears that defendant was the owner of an automobile car and that he had a man named Hettenbaugh in charge of it as chauffeur and repairer, and that he kept it in a garage at his residence in Kansas City. Hettenbaugh did not live with defendant, but had a home of his own more than a mile away. On the afternoon of the 10th day of July 1910, defendant, intending to be absent from the city for several days, had this chauffeur to drive him to the railway station on the north side of the city, arriving there about 1:30 p. m. He testified that when he alighted he directed the chauffeur to take two friends of defendant's up into the business part of the city and then to take the car home and put it in the garage. And it was further shown that he was to overhaul the car and make some repairs during the absence of defendant, consulting with an expert in a certain public garage in the city.

It appears that after taking these friends as ordered, he did not proceed directly home to the garage. He was shown to be at various places until at about 7:30 p. m. he ran over the plaintiff at Nineteenth and Grand avenue; and finally had a head end collision with a machine on the southern outskirts of the city. It is insisted by defendant that as a matter of law the chauffeur was not acting in the scope of his employment when he ran over plaintiff. We think this insistence is not sustained by law or fact and that this case was properly left to the jury. This is the substance of the testimony of the chauffeur as to his whereabouts: After stating that he left one of defendant's friends by the way, he left the other at the Baltimore Hotel and then drove over to the office building in which was the Pioneer Trust Company and of which defendant was an officer and waited for his pay check until 3:30. He then went two or more blocks to a laundry office for his collars. He then drove by a saloon on his way to Thirty-fourth and Broadway (a distance between twenty-five and thirty blocks) to the public garage kept by the agents for his make of machine, for the purpose of getting advice from Rogers, an expert, concerning the overhauling of the machine, as had been directed by defendant. Rogers got in and they drove around to determine what the machine needed. He returned Rogers to the garage and, his home being in that part of the city, he went there for his supper. After supper he drove back to the public garage and took Rogers home. After dropping Rogers, which, according to the latter's testimony was near seven o'clock, he started for the garage at defendant's home to put the car away. But, as stated by him, when "I got nearly to the place I missed my keys (to the garage and the car) and whether I left them one place or another I don't know, and never found them and haven't found them yet." He testified that "I went back to the garage and looked for my keys there and they were gone. Further than that I cannot remember." He stated that he "had a faint recollection of running into a man at Fifty-second and Oak (on the outskirts of the city). And "the next thing I can remember was that I woke up in the police station."

Rogers's testimony tended to show that Hettenbaugh and he got a drink of liquor at Westport when on their first drive and at fifteenth street and Grand avenue when he was being taken home. Whether Hettenbaugh had liquor with him at this time is not clear, but it is certain, that after he left Rogers, and started home to put up the machine he became so far under the influence of liquor as to be drunk. It was at this time, which must have been about seven o'clock, when he was getting near defendant's home, that he missed his keys and couldn't think "whether he left them at one place or another;" and he "went back to the garage" and looked for them. Manifestly, he went back to the garage at Thirty-fourth and Broadway where he had been to consult Rogers and where he had gotten out of the machine.

We have had two purposes in this recitation of matters which the evidence tended to prove. One, to meet defendant's point that Hettenbaugh, as a matter of law, was not engaged in the course of his employment in thus going about after he left defendant at the station; and the other, that there was no evidence that it was defendant's machine which ran over plaintiff. We need not discuss the latter in detail. The case is too clear to require that. The time of the collision at Nineteenth and Grand avenue was 7:30 p. m. He was shown to be in parts of the city where he might well have been at that place at that time. But the number of his machine was taken by several persons as he sped rapidly away. This, with the certificate of registration showing that number to be defendant's machine, was sufficient to justify a finding that the machine was defendant's. [Trombley v. Stevens Durea Co., 206 Mass. 516, 92 N.E. 764.]

On the first proposition, Hettenbaugh's employment was to take the machine back from the station to defendant's home and put it away, and to consult as to repairs with Rogers at the garage. If he had gone directly home and on the way had carelessly run over a pedestrian, no serious question could have been raised as to the course of his employment. But because there was delay in his reaching home, and because he went to other places and stopped on the way and took drinks of liquor, it is said, in effect, his course of employment ceased. That is little short of a statement that so long as an employee keeps within the orders of his employer he is in line of his employment, but so soon as he violates an order he is out of it. That would come near meaning that no liability would be incurred by an employer for the wrong of his servant unless he ordered him to commit the wrong. It was a part of the chauffeur's service to take the machine home and that he was slow about it, or went in indirect ways does not alter the matter so long as he was in pursuit of that object. So it was a part of his service to take the advice of Rogers as to repairs and the same remark will apply to going to see him. As we have said, there was evidence tending to prove (and since the verdict we must look alone to evidence in plaintiff's behalf) that he had nearly reached home when he turned back to find his keys, and it was after turning back that he ran over plaintiff, but that circumstance did not throw him out of the scope of his employment. If he lost his keys it was his duty to go back and get them.

There was evidence tending to show that bottles of liquor were found in the machine and that other persons, women and men, were seen in it; and this leads defendant to say that his chauffeur was bent on his own pleasure in what has grown to be known as "joy riding." Maybe he was disregarding his duty to defendant, certainly he was in running over plaintiff, but that is no defense, so long as he was prosecuting defendant's business in getting the car home. If an employer puts an engineer in the cab of a steam engine, or a driver at the wheel of an automobile and starts him out with either of these agencies, he is responsible for what that servant does in the way of negligence in running it for the purpose directed. It is no excuse for the employer to say he became intoxicated and I ordered him to keep sober, or that he drove fast when I directed him to go slowly, or that he went an indirect way when I required that he go directly; provided, of course, he is engaged in accomplishing the service he set out to perform.

We recognize it as law that the owner of a machine would not be liable for the chauffeur's conduct if the latter took the machine without the owner's knowledge and went "on a frolic of his own," alone or with others. Nor are we unmindful that a servant may start in a matter as the servant of an employer and then abandon his service. Thus he may conceive the notion of stealing the owner's machine and in his effort to escape with it, he may injure another. In that case there would not be liability. Or while in the scope of his employment, he may injure a person and then, as in this case, speed away to escape arrest or recognition and in doing so injure a second person, the master would not be liable; for, there is a clear abandonment of service and individual action and responsibility set in.

But there was evidence tending to show that there was no abandonment of service by Hettenbaugh in this case, until after plaintiff's injury. His double effort to consult with Rogers and to get the car home was continuous, so far as is shown, unless it be when he was taking Rogers home. And allowing that it ceased then it was undoubtedly resumed so far as getting the car home was concerned, when he left Rogers. [Vanneman v. Laundry Co., 166 Mo.App. 685, 692, 150 S.W. 1128.]

Defendant has cited us to McCarthy v. Timmins, 178 Mass. 378 59 N.E. 1038; Lotz v. Hanlon, 217 Pa. 339, 66 A. 525; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, and Colwell v. Aetna Bottle Co., 33 R.I. 531, 82 A. 388. Except the first, neither of these is in point. In Lotz v. Hanlon the owner of the automobile was absent from the country and the chauffeur, without leave, took a specially invited party of...