Opinion
No. 19064
Decided December 15, 1925.
Negligence — Respondeat superior inapplicable, when — Owner lends motor truck to charitable organization — Control over driver not exercised by owner.
An owner of a truck loaned it to a charitable organization solely for its use and benefit. At the instance of the latter the driver of the truck was permitted by the Owner to operate it at the time of the accident under the direction of the organization. The owner exercised no control over the driver, either in requiring him to perform the special service or in the manner of its performance. Held: The rule respondeat superior does not apply, nor does such owner become liable for the negligent acts of the driver while pursuing such special engagement for said organization.
ERROR to the Court of Appeals of Hamilton county.
The defendant in error brought suit against A.M. Braun and G.J. Kipp, doing business as Braun Kipp, and also made parties thereto other individuals doing business as the Richter Transfer Company. She claimed damages against these defendants for personal injuries, alleging in her petition that while she was a guest or passenger on a truck operated eastwardly over a public highway by Braun Kipp, that the truck came into collision with another truck operated westwardly upon the same highway by the Richter Transfer Company. Both of the defendants were charged with negligence in the operation of their respective trucks, and each of them filed answers by way of general denials.
In the course of the trials, on motion of the plaintiff, the cause was dismissed, without prejudice, as to the Richter Transfer Company and the individuals composing the same.
At the close of plaintiff's evidence the defendants Braun Kipp asked the court to direct the jury to return a verdict in their favor, and the jury was so instructed. The Court of Appeals reversed the judgment on the verdict, whereupon error was instituted in this court.
The testimony offered by the plaintiff affecting the liability of Braun Kipp is very brief. Braun Kipp were the owners of a truck used in their business. One Clarence Schroer was the driver of this truck, and had been employed as such for one or two years. On Sunday, July 27, 1919, a basket picnic was to be given at Mt. Alverno for the benefit of a society termed the "Brothers of Protectory." A man by the name of Stein, representing this brotherhood, called up Braun by telephone, and asked him "whether or not they would give them the truck on Sunday, on July 27th." Braun told Stein he would ask his driver Schroer whether he would drive the truck; that he would not pay him anything for doing so because it was Sunday. Braun reported Stein's request to Schroer and said to him:
"If you want to do that work, it is a case of charity. If you want to go out and report to them what they may ask you to, you may have the truck."
The driver said he would do that. Braun Kipp were not open for business on Sunday. Schroer testified that Braun said to him:
"They want to borrow the truck out at the Protectory. * * * If you want to drive it, * * * it is charity work. * * * You are not going to be paid because I am not going to pay you."
Schroer took this truck to the end of the car line, and from there he was to haul the people to the place where the basket picnic was held. The truck was used solely for the benefit of the society.
There is no testimony that Schroer was under the control of Braun Kipp, or either of them; but, on the other hand, the testimony disclosed that he was under the control of Stein, acting for the Protectory, in driving passengers, including the plaintiff, from the car line to Mt. Alverno. Stein also directed Schroer what to do and what roads to travel between these points. For his services on this occasion the driver received from the Protectory the sum of five dollars.
Messrs. Dorger Dorger and Mr. Allen C. Roudebush, for plaintiffs in error.
Messrs. Jackson Woodward, for defendant in error.
Since the evidence tended to show that the driver, Schroer, "the man in charge of the truck that was overturned, was a chauffeur regularly employed by Braun Kipp to operate this truck," the Court of Appeals was of the opinion that this fact raised the presumption that the chauffeur was acting within the scope of his employment at the time of the accident, and that therefore, a prima facie case was made which required submission to the jury. Had the proof simply shown that Schroer was the regular driver of the truck, employed by the owners for that purpose, and that at the time of this accident he was driving the truck with the owners' authority, express or implied, the presumption would obtain that Schroer was acting within the scope of his employment. This would be conformable to the decision of this court in White Oak Coal Co. v. Rivoux, Adm'x., 88 Ohio St. 18, 102 N.E. 302, 46 L.R.A., (N.S.), 1091, Ann. Cas., 1914C, 1082. But the case made by the plaintiff disclosed a state of facts which not only rebutted but more than countervailed any such presumption.
The evidence of the plaintiff shows affirmatively, and without room for dispute, that Schroer was not employed by the owners to drive the truck on the Sunday in question; nor was the truck driven in connection with the owners' business, nor for their benefit. The truck was loaned to a charitable organization for a special service, for its own use and benefit, and at the instance of the organization. The owners allowed the driver to operate the truck, but exercised no control over the driver either in requiring him to perform the special service or in directing the manner of its performance; nor was the driver to receive any compensation from the owners. Mr. Stein, acting for the Boys' Protectory, assumed entire control over the driver, and directed the roads he should travel from the end of the car line to the picnic grounds. It is clear that Braun Kipp's sole connection with the entire transaction was the charitable one of loaning their truck to the society. There is no room for the application of the rule respondeat superior, whereby the owner of the truck can be held for the negligent acts of Schroer. The test of a master's liability lies in proof of the fact that, if the negligent act was done by a servant, it was done in the course of his master's employment and while engaged in the service of the master. Lima Ry. Co. v. Little, 67 Ohio St. 91, 65 N.E. 861; Coal Co. v. Rivoux, supra; Elms v. Flick, 100 Ohio St. 186, 126 N.E. 66.
The test of liability upon the part of the master alluded to in the Ohio authorities has been so generally recognized and applied by the courts that it would be futile to refer to the many authorities covering the phase presented. The following cases are, we think, peculiarly in point: Pease v. Montgomery, 111 Me. 582, 88 A. 973; Janik v. Ford Motor Co., 180 Mich. 557, 147 N.W. 510, 52 L.R.A., (N.S.), 294, Ann. Cas., 1916A, 669; Doran v. Thomsen, 74 N.J. Law, 445, 66 A. 897.
In the special engagement which Schroer was pursuing at the time of the accident he was in no wise the servant of the owners of the loaned truck, but became the servant of the temporary master under whose employment and control he was then acting.
For the reasons stated the judgment of the Court of Appeals is reversed and that of the common pleas affirmed.
Judgment reversed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.