Summary
concluding that employer was not liable to injured pedestrian struck by employee's automobile, which contained papers that employer had instructed employee to complete at home
Summary of this case from Blais v. United StatesOpinion
No. 35360.
May 24, 1943. Suggestion of Error Overruled July 3, 1943.
1. AUTOMOBILES.
Where cost clerk, while going home in his own automobile after work, took papers with him to complete compilation at home pursuant to instructions, and injured pedestrian on way home, employers were not liable to pedestrian on theory that injury occurred in "scope of employment" of clerk.
2. MASTER AND SERVANT.
That servant's predominant motive is to benefit himself or a third person does not prevent act from being within the "scope of employment," and master is liable if purpose of serving the master's business actuates the servant to any appreciable extent.
3. MASTER AND SERVANT.
In order to bring service within "scope of employment" so as to make master liable for injuries, actuation of servant by purpose of serving master's business must be more than merely technical, suppositional, or argumentative, and must amount to more than a scintilla.
APPEAL from chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.,
Jackson, Young Friend, of Jackson, for appellants.
Ellis owned his own car, paid all expenses on it, used it to go to and from his work, and the only thing that could possibly connect him on this occasion with the S. W. Construction Company was the fact that he had reports in his possession which he was to file in the general office on his arrival. The only benefit, if any, appellants would receive would be on the filing of the papers or reports and this would be and was done on the reservation. No benefit accrued to appellants from this cross-country trek from Walnut Grove, Mississippi, to the ordnance plant, except perhaps the fact that the defendant Ellis would appear for work that morning, and it has always been held that there is no duty on the master to furnish the servant with transportation, and the appellants had not so furnished the defendant Ellis.
Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Tallahala Lumber Co. v. Holliman, 125 Miss. 308, 87 So. 661; Hamilton Bros. Co. v. Weeks, 155 Miss. 754, 124 So. 798.
The master is not responsible for every tortious act of a servant, nor is the master an insurer against all wrongs. There are, it is said, three sets of conditions under which an employer may be liable for the tort of his agent: (1) When the tortious act is done in obedience to the express orders or directions of the master; (2) when it is done in the execution of the master's business, within the scope of his employment; and (3) when it is warranted by the express or implied authority conferred upon the servant, considering the nature of the services required, instructions given, and the circumstances under which the act was done.
35 Am. Jur. 980, Sec. 550.
The question seems to be: Was the defendant Ellis at the time of the accident doing something that would further the appellant's business or interest? Was the act being performed by defendant Ellis so reasonably connected with his authorized duties, and so reasonably connected with the authorized period or time for performing those duties as to constitute said Ellis the employee of the appellants at the time of the accident?
18 R.C.L. 796, Sec. 254.
It is submitted that any benefit the appellants received from the operation of this automobile, owned by the defendant Ellis, on the morning of the accident was purely incidental and not so connected with defendant Ellis' authorized duties or so connected with the authorized period of time for performing those duties as to constitute said Ellis the servant or employee of appellants acting within the scope of his employment or in the furtherance of any business of the appellants. Ellis was on his way to work at the time of the accident it is true, but he was driving his own automobile, and the accident occurred before the time for his employment with the S. W. Construction Company to begin. He may have had notes or reports in his pocket or in the compartment of his automobile that were to be filed that morning when he reached his destination, but is this such that would constitute him at that time the agent or employee of the S. W. Construction Company? Is it such that this court could reasonably say that he was acting within the scope of his employment or in the furtherance of his master's business? His employment was cost clerk. His duties were confined to the reservation. He went to work at eight o'clock in the morning and quit work at five o'clock in the afternoon. He was paid $35 a week for six days' work and this did not include Sundays. He was furnished no transportation to and from his work. The appellants had no control or power to direct his movements after he left his place of employment, or in returning thereto. He could go and come how and when he pleased, just so he was there and available for work at the time his days' work was to begin. Do these facts even indicate that he was the servant or employee of the S. W. Construction Company at the time of the accident?
Incidental benefit which the employer may derive from the use of his car by an employee for purposes of his own by reason of the fact that the car bore the employer's name and would, in a measure, advertise his business; the fact that the chauffeur may have incidentally been testing the car; or the fact that the employee intended, during the excursion for himself, to procure accessories for use in the machine, does not render the employer liable for the employee's negligence while so serving his own purposes, though where an employee using his employer's truck partly for his own pleasure and partly for his employer's benefit by soliciting business, he may be held to have been acting within the scope of his employment.
5 Am. Jur. 718, Sec. 380.
See also Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Perfection Mattress Spring Co. v. Windham, 236 Ala. 239, 182 So. 6; Slattery v. O'Meara, 120 Conn. 465, 181 A. 610; Ashland Coca Cola Bottling Co. v. Ellison, 252 Ky. 172, 66 S.W.2d 52; Meyn v. Dulaney-Miller Auto Co., 118 W. Va. 545; Monaghan v. Standard Motor Co., 96 Mont. 165, 29 P.2d 378.
The proof shows conclusively that defendant Ellis, at the time of the accident, was not acting within the scope of his authority or in the furtherance of the business of the S. W. Construction Company in that said Ellis was using his own car and there is no evidence that said company had knowledge or had given said Ellis authority or direction to use his automobile in the transportation of said reports or papers, and had no control, supervision or direction over the operation of said automobile at the time of said accident, and the court should have found for said appellants.
The mere fact that an employee uses his own automobile in the business of the employer does not make the latter liable under the doctrine of respondeat superior for injuries inflicted by such employee in the operation of the automobile. If, however, the other circumstances involved in the case are consistent with, or require, the inference that the activity in which the servant was engaged at the time of the tort complained of, and in which he was using his own car or one which he had hired, was within the scope of his employment, the person injured may recover from the employer, if the servant's use of the automobile or other vehicle was authorized, either expressly or impliedly. Thus, if an employee, with the knowledge and assent of the employer, repeatedly uses an automobile, not owned by the employer, in the latter's business, the employer will be held to have impliedly authorized its use and to be liable for negligence in connection therewith, but the mere fact that an automobile was used on one occasion, unaccompanied by any evidence of other similar acts, does not justify any inference that the employee was later authorized to use the machine upon the employer's business. The employer is not liable where the use of the automobile or other vehicle operated by the employee is not expressly or impliedly authorized by the employer, and he exercises no control over its operation. He cannot be held liable under the doctrine of respondeat superior for personal injuries inflicted by an employee while engaged in unnecessarily driving his own automobile upon the master's business, without the latter's knowledge or express or implied authorization.
Khoury v. Edison Electric Illuminating Co., 256 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159; Tucker v. Home Stores, 170 Tenn. 23, 91 S.W.2d 296; Van Landingham v. Singer Sewing Mach. Co., 207 N.C. 355, 177 S.E. 126; Kennedy et al. v. American National Ins. Co. (Tex), 107 S.W.2d 364, 112 A.L.R. 920; 5 Am. Jur. 728, sec. 393.
See also Davis v. Price, 133 Miss. 236, 97 So. 557; Brand v. Tinnin, 190 Miss. 412, 200 So. 588; Delta Cotton Oil Co. v. Elliot, 179 Miss. 200, 172 So. 737, 174 So. 550; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Crescent Baking Co. v. Denton et al., 147 Miss. 639, 112 So. 21; Hantke v. Harris Ice Mach. Works, 152 Or. 564, 54 P.2d 293; Shauntz v. Schwegler Bros., 156 Misc. 265, 282 N.Y.S. 341; P.F. Collier Son Distributing Corp. v. Drinkwater (C.C.A 4th), 81 F.2d 200; American National Ins. Co. v. O'Neal (Tex.), 107 S.W.2d 927; General Refrigeration Sales Co. v. Taylor, 229 Ala. 479, 158 So. 314.
The verdict and findings of the chancellor are contrary to and against the overwhelming weight of the credible evidence as to liability insofar as the S. W. Construction Company is concerned, and the overwhelming weight of the credible evidence shows that the relationship of master and servant did not exist between the defendant Ellis and the appellants at the time of the accident, and further shows that said Ellis was not acting as their servant or employer within the scope of his employment or in the furtherance of any business of the S. W. Construction Company.
Covington County v. Fite, 120 Miss. 421, 82 So. 308; Fox v. Matthews, 33 Miss. 433; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Yazoo M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Beard v. Williams, 172 Miss. 880, 161 So. 750; Universal Truck Co. v. Taylor, 174 Miss. 353, 164 So. 3; Mobile O.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827.
J. Ed. Franklin and Lamar F. Easterling, both of Jackson, for appellee.
The defendant Ellis was in the employ of appellants, and the circumstances and evidence warrant the inference that he was to use his automobile in performing his services.
The mere fact that the instrumentality which occasions an injury to a third person does not belong to the master will not preclude recovery from him for such injury, if the other circumstances require the inference that the tort complained of was within the scope of the servant's employment; the question being whether the use of the instrumentality was or was not authorized, expressly or impliedly, by the master. And one, although not owning an automobile, whose negligent management has occasioned an accident, may be liable for the resulting injury if, at the time thereof it is being operated by his servant within the scope of his employment.
Barmore v. Vicksburg, S. P.R. Co., 85 Miss. 426, 38 So. 210; Southern Bell Telephone Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107; Hutto et al. v. Arbour et al. (La.), 4 So.2d 84; Roy v. Houlihan et al. (La.), 182 So. 333; Matheny v. U.S.F. G. Co. et al. (La.), 181 So. 647; Kohl v Albert Lifson Sons, Inc., et al. (N.J.), 140 A.L.R. 1146; Western Union Telegraph Co. v. Gorman (Ala.), 185 So. 743; 2 Blashfield's Cyclopedia of Automobile Law, 1438; 2 Blashfield's Cyclopedia of Automobile Law, 1445, sec. 5; 18 R.C.L. 792, sec. 252; 18 R.C.L. 793, sec. 253.
The final decree is supported by credible testimony found to be true by the learned chancellor.
The principal defendants, partners doing business as the S. W. Construction Company, the appellants here, were the contractors in the construction of the ordnance plant, or a part thereof, located about four or five miles from the Town of Flora, in Hinds County. Ellis, the other defendant, was employed by the contractors as cost clerk. His duties were to obtain daily, within the grounds of the plant beginning at 8 o'clock each morning, the detailed data of the cost of doing the work on what was known as Bag Loading Line No. 2, and for the entry of the details, he was furnished suitable blanks. When the data for each of these were fully obtained, Ellis would then go in the afternoon to a small office on the reservation to which he had access and would there complete his report for the day, including the appropriate compilations, and would then take the papers or documents to the main office in the Town of Flora and there file them, which would be about 5 o'clock in the afternoon.
After he had filed the completed report and the accompanying papers at the main office, the duties of Ellis for that day would be at an end and until his return to the plant for the resumption of his work on the following morning at 8 o'clock. Ellis had his own automobile which he used in going to his work in the morning and in departing therefrom in the afternoon. He lived in an adjoining county, and generally went to his home to spend the night, but sometimes he stopped over for the night at the neighboring City of Jackson. His employers had no obligatory interest in, or control over, the means or manner by which he arrived at the plant each morning, nor by which he departed from his work in the afternoon. So far as his employers were legally concerned he could have walked, ridden a horse, or used the public busses. They paid no part of the expenses of the operation of his automobile.
On Saturday afternoon, November 8, 1941, when Ellis had completed his work of obtaining the detailed data of the day, he went to the small office on the grounds which he had been customarily using for completing his compilations but found that it had been moved. He then proceeded to the main office in the Town of Flora, expecting to complete his papers at that office, but on arrival there found that the main office had also been moved, but he did find there one Hurt who was Ellis' superior in this work, and Hurt told Ellis to take the reports and papers home with him and there complete the compilations and that he should file them at the main office on his return to his work at the plant on the following Monday morning at 8 o'clock, Hurt informing Ellis at the same time that the main office would be open on the plant grounds when he arrived there at 8 o'clock on Monday morning.
Ellis threupon took the papers with him, completed the compilations at his home, and had them with him, either in his pocket or in the glove compartment of his automobile, on Monday morning, November 10, 1941, when he was returning to his work and so as to be there by eight o'clock. He was pursuing his ordinary and usual course of travel from his home to the plant, when about 7 o'clock or a few minutes thereafter and when about twenty miles from the plant, he ran over and seriously injured the complainant. A decree was obtained against all the aforesaid defendants as joint tort-feasors, it being the contention of the complainant that at the time of the injury Ellis was an employee of the principal defendants acting within the scope of his employment and in the furtherance of the business of his employers.
We are of the opinion that what Ellis was doing at the time of the injury was that of serving his own purpose of transporting himself to the place where his work for the day was to begin, and the fact that he happened, under the stated circumstances, to have with him some papers belonging to his employers was a mere collateral incident, or that at the most that could be said of it, he was engaged in the dual purpose of serving himself and also his employers.
In such cases as last mentioned the rule to be applied is found in Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507, 509, where the alleged servant was engaged at the time partly in purposes of his own and partly in the furtherance of the business of his employer and within the range of his appointed duties, and there the rule was announced, quoting from the comment under Section 236, A.L.I. Rest. Agency, that "the fact that the predominant motive of the servant is to benefit himself or a third person, does not prevent the act from being in the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is liable if the act otherwise is within the service."
It is not necessary here for us to undertake to define more precisely what is required to be shown in order that the extent of the actuation may be considered as appreciable; it is enough here to say that it must be more than that which is merely technical, or suppositional, or argumentative — it must amount to more than a scintilla. Compare Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 312, 141 So. 335.
There is no substantial foundation in the facts of this case to sustain a suggestion that the alleged servant would have taken any other course either as to time, manner or place, than he did had the papers mentioned not been in his possession. Had he not taken them home with him on Saturday, he would nevertheless on Monday morning have returned to his work, using his car in so doing and so as to arrive at his work at 8 o'clock a.m. and would, in all probability, have passed along the place where the injury occurred and about the same time. There is nothing, therefore, except to avail of the inadmissible elements above mentioned, which would sustain the affirmative of the issue that the alleged servant was actuated to any appreciable extent in making the trip and in the manner which he did by the fact that these papers were to be returned that same morning as a collaterally incidental part of his return trip — a trip which he would have made for himself, papers or no papers. He had not been sent on a mission to obtain and bring papers — he had not even been sent out of his way to do so. Had a superior employee met Ellis on the road that morning and had given him an important letter to deliver to the office on his arrival there, we suppose none would contend that the employers would be liable for what Ellis did thence on the way.
The decree should have denied any liability on the part of appellants, and such a decree will be entered here. Ellis did not appeal, and the decree stands undisturbed as to him.
Reversed, and decree here for appellants.