Hoffman v. Roehl

MR. JUSTICE' GALEN

delivered the opinion of the court.

This is an action for damages on account of personal injuries sustained by the plaintiff by reason of having been run into by a Ford automobile belonging to the defendant E. R. Roehl, driven at the time on Main street, in the city of Lewistown, by one Martha Bean, the daughter of Daniel Bean; the latter at the time having been negotiating with Roehl for the purchase of the car. E. R. Roehl and Joseph Leedy, employee, were jointly made defendants. It appears that Daniel Bean wanted to buy a Ford automobile and approached the defendant Roehl, an automobile dealer in Lewistown, and inquired whether he had any bargains in Ford cars. Roehl replied that he had one which he would sell for $250, but that the engine had to be overhauled and the motor cleaned. Bean told Roehl to have the work done, “prove that the car would run uphill,” and he would buy it. Three or four days subsequently, on November 21, 1916, Bean visited Roehl’s place of business and Roehl then and there said to Bean that the car was cleaned and in readiness to make a “go out.” Bean asked Roehl who he would send out with the car, to which he replied: “Joe Leedy.” At the time Roehl was in his office, and Bean went therefrom into the workroom adjoining, and upon inquiry found Joe Leedy. Leedy cranked the car and both Leedy and Bean got into the car and went away. At Bean’s suggestion, Leedv drove the *296 car to Bean’s residence, several blocks distant from the starting point, in order that Bean might show it to his wife and daughter. After arriving at Bean’s house, his wife and daughter came out and looked at the ear. His daughter Martha was accompanied by a friend, Miss Christopher, and both had their hats and wraps on, as Martha was intending to go across town to Judith Place, in order to make delivery of a dress to a lady for whom she had made the same. Bean invited the girls to get into the car and requested Leedy to let Martha drive, saying: “She will be my chauffeur if I get it, so let her be the first to run it.” Martha got in, took the wheel, and Leedy sat in the front seat alongside of her; Mr. Bean and Miss Christopher getting into the rear seat. The car was then driven by Martha across town to Mrs. Taft’s residence, where she stopped the car and made delivery of the dress. She then started the car again and proceeded up Main Street to the intersection of Fourth Avenue, where traffic was greatly congested. At or near that point a speeding motorcycle caused two men to jump out of its way and into the path of the car driven by Miss Bean, in consequence whereof she lost control of the car and Leedy grabbed hold of the wheel, and the car was steered upon the sidewalk, striking and seriously injuring the plaintiff. Leedy testified: “I have resided in Lewistown, Montana, since January, 1914, continuously. On the twenty-first day of November, 1916, I had been engaged in the automobile business as an employee of E. R. Roehl since January, 1914. I saw Daniel Bean for the first time on November 21, 1916. On said date I took a certain Ford automobile from the garage of E. R. Roehl, at Lewistown, Montana, for the purpose of exhibiting or demonstrating the car to the said Daniel Bean, at the direction of Mr. Roehl. I first met Martha Bean on that day.” At that time the plaintiff was employed by the Chicago, Milwaukee & St. Paul Railroad, as an engineer, and was earning from $150 to $175 per month. He was in good physical condition, thirty-five years of age, and married.

*297 Issue being joined, the cause was tried to a jury and resulted in a verdict and judgment against tbe defendant Boebl in favor of tbe plaintiff for the sum of $16,800. At the close of plaintiff’s case, the defendant Boehl moved for a directed verdict, which motion was denied, and the case went to the jury without any evidence being offered in defense. Appeal is prosecuted by the defendant Boehl from the judgment and order overruling defendant’s motion for a new trial.

Several errors are assigned, involving but one principal ques- [1] tion, solution of which is determinative of the ease, viz.: The liability of the defendant Boehl for damages on account of plaintiff’s injuries, in application of the doctrine of respondeat superior.

The rules applicable have been crystallized into statute in this state. Section 5442, Bevised Codes, provides: “An agent represents his principal for all' purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such -limit, if they had been entered into on his own account, accrue to the principal. ’ ’ And section 5450 reads as follows: “Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.”

These statutory provisions are merely declarative of the common law, and in their application to the facts in the case before us the liability of the employer is clear. The employee Leedy was directed by his employer to take the automobile from the garage “for the purpose of exhibiting or demonstrating the car” to Daniel Bean, a prospective purchaser; and in such position, and acting under such direction of his employer, the object and purpose of the employee was necessarily to bring about accomplishment of the sale in contemplation. In acceding *298 to the wishes of Martha Bean to go across town to Judith Place to make delivery of the dress, and to the request of her father that she be permitted to drive the car, we think Leedy acted within the scope of his employment. The agent took his place in the front seat of the automobile, alongside of Martha Bean, showed her how to control the car, how to start it, what pedals to use, and the like. Miss Bean testified: “Mr. Leedy said that I was doing very good, and I told him that I had never driven a car in town before and that I wouldn’t drive it if he hadn’t been with me. I told him to pay particular attention to me and see that nothing happened, to be ready to help me if anything should happen, because I didn’t feel exactly safe on Main Street. That was the first time I had ever attempted to drive a car in the business section of any town.”

As applicable to this case, we quote with approval the language used by Mr. Justice Young, speaking for the Supreme Court of New Hampshire, in Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535 , as follows: “The test to determine whether a master is liable to a stranger for the consequences of his servant’s misconduct is to inquire whether the latter was doing what he was employed to do at the time he caused the injury complained of. If he was, the fact that he was not doing it in the way expected is immaterial [citing cases]. But, if at the time he did the act which caused the injury he was not acting within the scope of his employment, the master is not liable.” And this view is entirely consistent with the provisions of our statute and in accord with the views expressed by this court in Lewis v. Steele, 52 Mont. 300 , 157 Pac. 575 .

The decisive question in every instance is whether the agent [2] or employee was, at the time of negligent injury, acting within the scope of his employment. If he acted independently of his employer, or was upon missions or purposes of his own, [3] then the employer is not to be held accountable in damages. Necessarily, in most instances, the question is one of fact. It becomes one of law, however, whenever it appears that the given deviation was made for the purpose of doing *299 something which had no connection with the servant’s duty. “In determining whether a particular act is done in the course of the servant’s employment, it is proper first to inquire whether the servant was, at the time, engaged in serving his master. If the act is done while the servant is at liberty from service and pursuing his own ends exclusively, there can be no question of the master’s freedom from all responsibility, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master.” (1 Shearman & Redfield on the Law of Negligence, 6th ed., see. 147.)

The employer or principal is liable for the negligent acts of his employee while acting as his representative, and the purpose of the act rather than its method of performance is the test of the scope of his employment. (26 Cyc. 1534.)

Defendant has cited many cases in support of his contention of nonliability, but they are all distinguishable from the case under consideration. In those eases the missions of the servant were outside the scope of his employment and pertained primarily to the employee’s personal pleasure, business or affairs, or were instances where the employee had surrendered control of the automobile to a third person for a purpose independent of and not connected with the business of the employer.

We concede the law as contended for by the defendant, that where the servant steps aside from his master’s business, if but for a short space of time, and does an act not connected with the business, which is harmful to another, the master is not liable, the reason being that the relation of master and servant does not at the time exist; but here the servant continued about the business of his employer, adopting methods deemed expedient, resulting in a third person’s injury, and the employer is liable. (18 R. C. L., p. 796.)

In this case the proof neither shows an independent mission by the employee for purposes of his own outside the scope of his employment nor the surrender of control of the operation of the car to a stranger. In making exhibition and demonstra *300 tion' of the car to the prospective purchaser, Leedy permitted Miss Bean to operate the car; and at the time of the accident he was by her side on his master’s business, grabbed the wheel, and the accident complained of resulted. There was no break in the continuity and purpose of the mission, and the hand of the servant was physically on the steering wheel of the car at the time of the accident. It is plain that the accident occurred through the negligence of the' agent in the transaction of the business of the agency, and in consequence the principal is liable.

Rehearing denied January 6, 1922.

By legal intendment the act of the employee became the act of the employer; the individuality of the employee being identified with his employer. The latter is deemed to have been constructively present, and the act of the employee that of the employer, and thus the latter becomes accountable for his own proper act or omission. (18 R. C. L., p. 786.)

“He who expects to derive advantage from an act which is done by another for him, must answer for any injury which a third person may sustain from it,” said Lord Chief Justice Best in Hall v. Smith, 2 Bing. 156.

We are not unmindful that the application of the rule may, and often does, work hardships, and that in the case before us a hardship is undoubtedly worked upon the employer; however, the rule is founded on reason and looks to the protection of third persons. The verdict might be considered excessive in view of the evidence, but, as no contention is made in this respect, the subject is passed without further notice.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.