Wood v. Southeastern Greyhound Lines

• Decision Date: 16 April 1946
• Citation: 302 Ky. 110
• Parties: Wood v. Southeastern Greyhound Lines.
• Court: United States State Supreme Court — District of Kentucky

302 Ky. 110

Wood v. Southeastern Greyhound Lines.

Court of Appeals of Kentucky.

April 16, 1946.

1. Master and Servant. — Whether employer can be held responsible for damages in tort to a third person resulting from some act committed by employer's servant depends upon determination of whether the servant was acting within the scope of his employment at the time of the tortious act.

2. Master and Servant. — A master is liable only for acts of servant committed in course or scope of servant's employment, and not for acts of servant committed while servant was not serving the master and outside the scope of the employment.

3. Master and Servant. — Beyond the scope of his employment, a servant is as much a stranger to his master as to any third person, and act of the servant not done in execution of service for which servant was engaged cannot be regarded as act of master.

4. Master and Servant. — If an agent steps aside from the principal's business for however short a time, the relation of agency and the agent is for that time suspended and the agent is not acting within the scope of his employment.

5. Master and Servant. — An act is "within scope of servant's employment" where such act is necessary to accomplish the purpose of the employment and is intended for such purpose, although in excess of the powers actually conferred on the servant by the master.

6. Master and Servant. — To be within "scope of employment" conduct must be of the same general nature as that authorized or incidental to the conduct authorized.

7. Master and Servant. — To determine whether an agent's act is within the scope of employment, so that the master is liable therefor, the question is whether the agent's conduct is so unlike that authorized that it is substantially different.

8. Master and Servant. — An employer is responsible to third persons for servant's tortious acts if committed while servant is engaged in furthering employer's business or interests without any deviation by servant to any pursuit of servant's own business or interests, where general similarity exists between tortious acts and usual, ordinary everyday acts commonly pursued by servant in prosecuting the regular routine of his employment.

9. Master and Servant. — A bus company was not liable to motorist who disputed with bus driver over right of way while traveling on highway and who was assaulted by driver, who left bus in middle of highway before reaching regular bus stop and descended and followed motorist to motorist's place of business, since the assault was a deviation from the driver's routine of employment.

Appeal from Grant Circuit Court.

R.L. Vincent and C.C. Adams for appellant.

R.W. Keenon, Fennell & Tucker, and Robert Houlihan for appellee.

Before Ward Yager, Judge.

OPINION OF THE COURT BY JUDGE SILER.

Affirming.

The appellant, Roy D. Wood, sought to recover damages in the sum of $17,500 against appellee, Southeastern Greyhound Lines, resulting from a personal assault committed upon appellant by appellee's bus driver. From a judgment of the trial court sustaining a general demurrer to his petition, as amended, the appellant now prosecutes this appeal.

The essential and pertinent allegations set up by appellant for his cause of action in his petition and amended petition are in the following averments, viz.: That appellee's bus driver, L.C. Hoskins, was operating one of appellee's busses on U.S. Highway 25 in Grant County, on November 18, 1944; that appellant, while driving his car, attempted to enter U.S. Highway 25 at its junction with Kentucky State Highway 36 at a place called Halfway House, at which time and place appellee's bus driver crowded appellant's car off of the highway; that appellant regained the highway and then proceeded ahead of appellee's bus, thereby producing a continuing controversy for the road, which controversy lasted until both vehicles had traveled about one-fourth of a mile and arrived in the City of Williamstown; that appellant then got out of his car in Williamstown at his place of business and that appellee's bus driver, then and there stopping and leaving his bus in the middle of U.S. Highway 25 before it had reached the regular bus stop, alighted from his bus and followed appellant to his place of business, where he cursed him and assaulted him with his fists and a ticket punch, thereby humiliating him in the presence of many citizens of Williamstown; that appellee's bus driver was, upon this occasion, wearing appellee's uniform for bus drivers and was in charge of one of appellee's busses and was following his regular duties of protecting the passengers on said bus through his customary management and operation thereof; that the controversy, which began at the Halfway House or the junction of Kentucky State Highway 36 with U.S. Highway 25, continued without interruption until the said controversy culminated in the assault and battery committed upon appellant by appellee's bus driver at appellant's place of business in Williamstown; that this driver of appellee was high tempered, vicious and overbearing, all of which was known to appellee, or could have been known to appellee by the exercise of ordinary care. To these allegations, which constitute the sum and substance of the principal averments of appellant's petition, as amended, the court sustained a general demurrer upon the theory that no cause of action had been stated against the appellee.

The determination of whether an employer, such as this appellee, can be held responsible for damages in tort to a third person, such as this appellant, resulting from some act committed by the employer's servant, such as this bus driver, depends entirely upon a prior determination of whether the servant was acting within the scope of his employment at the time of his tortious act.

A leading case in our own jurisdiction dealing primarily with this very question is that of Newberry Co. v. Judd, 259 Ky. 309, 82 S.W. 2d 359, 362, and in that case we find the following statement of legal principle:

"It is clear the rule of respondeat superior cannot be invoked and the employer be held liable where the action of the employee was motivated by conceptions of personal wrong or the invasion of...