In Jones v. Weigand (134 App. Div. 644), cited with approval in Riley v. Standard Oil Co. (231 N.Y. 301, 306), the coach driver after returning the mourners from the cemetery to their homes in Brooklyn, went back to Queens county to visit his sweetheart, and, having concluded the visit, started to turn his coach around to return to the stable in Brooklyn.Summary of this case from Wissner v. Hartmann
November 19, 1909.
Robert Stewart [ Ralph G. Barclay with him on the brief], for the appellant.
Frederick N. Van Zandt [ Frederick B. Maerkle with him on the brief], for the respondent.
The plaintiff was struck and run over by a coach owned by the defendant and driven by his employee, and brings this action to recover for the personal injuries thereby sustained. At the close of the evidence the court dismissed the complaint on the ground that the negligent act of the driver was not done in the course of his employment as such.
The driver had been sent with a coach by his employer to an undertaker for use at a funeral. According to directions he went to 1134 Manhattan avenue, Kings county, drove a gentleman from there to 320 East Ninetieth street, New York, the house of mourning, from there to Calvary Cemetery in Queens borough, where the interment took place; from there he returned to 1134 Manhattan avenue, where his engagement terminated. It is undisputed that he had no further duty to perform except to return the coach to the defendant's stable, which was located in Kings county on Newell street, between Driggs and Nassau streets, a distance of sixteen blocks from 1134 Manhattan avenue by the direct route. In place of returning by the direct route the driver took a circuitous route, driving back into Queens county and going several blocks out of his way, part of the time in the opposite direction of the stable. He stopped at 133 Greenpoint avenue, Queens county, to call on a lady and left the team standing by the curb. Upon returning to the coach he started up the horses, taking no heed of the plaintiff, a little child, who was playing near the step of the coach, with the result that the plaintiff was thrown under the wheel and run over.
The driver was called as a witness by the defendant and testified that he took the circuitous route to the stable because he thought it was safer; that by that course he would avoid the streets where the traffic was greatest, and that, while the distance was greater, he could make it in as good time, and that in fact it did not occur to him to call on the lady until within a block of her home. The truth of that story was for the jury. While it may have been improbable, it was not incredible as a matter of law. Apparently the witness was friendly to the plaintiff, but he was called by the defendant.
Moreover, even if the driver's testimony were eliminated, it is doubtful whether the ruling would be sustained. The point is very nice and the discrimination between some of the cases very fine, though the general rule is well settled. The master is liable only for acts done by the servant in the course of his employment as such, but mere disregard of instructions or deviation from the line of his duty does not relieve the master of responsibility. Wrongful acts are usually in violation of orders or in deviation from the strict line of duty. The test is whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions. If the servant for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable; but to constitute an abandonment of the service the servant must be serving his own or some other person's purposes wholly independent of his master's business. It seems to me that the taking of the circuitous route to the stable was at most a deviation, not an abandonment, of the service. While the servant deviated from the direct route he was nevertheless engaged in taking the coach back to the stable. He combined his own with his master's purposes, but did not wholly abandon his service, except during the time when he was absent from the coach to make his call.
But if the foregoing be doubtful it seems plain that when the driver returned to the coach for the purpose of taking it back to the defendant's stable, he re-entered upon his master's service, and resumed the business which he had temporarily abandoned. It is no answer to this to say that the accident would not have happened if he had not made the call. His carelessness after he had resumed his master's business was the causa causans of the accident.
The leading English cases ( Joel v. Morison, 6 Carr. P. 501, and Sleath v. Wilson, 9 id. 607) are illustrations of mere deviation from the line of duty, while Mitchell v. Crassweller (13 C.B. 237) and Storey v. Ashton (L.R. 4 Q.B. 476) were held to be cases of a total abandonment of the service. The cases cited by the respondent are not in point, and it is necessary to note only one or two of them. In Cunningham v. Castle ( 127 App. Div. 580) the defendant's evidence tended to show that the defendant had loaned the automobile to his chauffeur, and that the accident happened while the latter was using it solely for his own purposes. Sheridan v. Charlick (4 Daly, 338) was decided on the authority of Mitchell v. Crassweller ( supra). The evidence in that case tended to show, not deviation merely, but an entire abandonment or departure from the master's business. The coachman was not returning the horses and carriage to the stable even by a circuitous route, but was using them for purposes of his own. The Massachusetts cases may seem to support the defendant's contention. (See McCarthy v. Timmins, 178 Mass. 378; Perlstein v. American Express Co., 177 id. 530.) This case, however, may be distinguished from those by the fact that, when the accident occurred, the servant had performed his own purposes and had resumed his duty to return the coach to the stable. I do not see how the case can be distinguished from Williams v. Koehler Co. ( 41 App. Div. 426), a case in this department, decided on the authority of Quinn v. Power ( 87 N.Y. 535), except that that was a much stronger case for the defendant than this.
The judgment should be reversed.
WOODWARD, JENKS, BURR and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.