Opinion
Whether an employee was within the scope of his employment at the time of an accident to him involves consideration of whether it occurred within the period of the employment and at a place, though outside the course of the employment, such that a deviation made by him could be regarded, as matter of law or fact, as incidental or slight; or if substantial, whether it was so substantial as to be a complete departure from the employment. This determination is made by weighing the extent and nature of the deviation, the surrounding facts which characterize and explain it, and the intention and purpose of its making. Whether the extent of the departure is so unreasonable as to become an independent journey of the servant or one incidental to the employment is a question of degree; ordinarily this will be one of fact, unless the deviation is so great, or the conduct so extreme, as to take the servant out of the scope of his employment and constitute a complete departure from it. The defendant's employee A, who operated its truck between its Hartford and West Hartford stores, drove the truck from the latter during a noon hour, departing from the usual routes between the stores, with the intention of driving F, an employee of the defendant, to an appointment on Blue Hills Avenue, some two and a half miles distant. He declared his intention to F after this departure and she protested against his driving her to Blue Hills Avenue, but he made no response and continued on the same route. Due to his negligence, A struck and injured the plaintiff a short distance from his point of departure from one of the routes to the Hartford store. Held: 1. That at the time of the accident A was not engaged upon his employer's business but was pursuing his own personal purpose. 2. That although the accident occurred within the time of employment and at a place not so unreasonably distant from the route of his employment as to take him outside its scope as a matter of law, his purpose, which he had not abandoned, was to go to a place so unreasonably distant as to be outside the scope of his employment, and the deviation constituted a complete abandonment thereof. 3. That the defendant-employer is not responsible for the injuries caused by A's negligence during the period of his temporary abandonment of the employment.
Argued October 4th, 1929
Decided March 3d 1930.
ACTION to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Hartford County and tried to the court, Yeomans, J.; judgment for the plaintiff against the defendant The W. W. Walker Company and appeal by that defendant. Error; judgment directed for defendant The W. W. Walker Company.
The court found the following facts: At the time of and prior to the accident the defendant The W. W. Walker Company operated two grocery stores — one on Farmington Avenue in West Hartford, the other, its main store, on Main Street south of Pearl Street in Hartford. The defendant operated a truck from its Hartford to its West Hartford branch store usually in carrying goods there and returning empty. Ahern had been in the employment of the defendant in driving this truck between the two stores about five months, and occasionally he made general deliveries. At the beginning of his employment the defendant instructed him as to his duties and specifically forbade him to use any of its trucks either for the purpose of his own errands, such as going to his home for lunch, or for the purpose of carrying or transporting any of the other employees of the company. The most direct route from the Hartford store of the Walker Company to the West Hartford branch is to pass west on Pearl Street in Hartford to Ford Street, north on Ford to Asylum Street, west on Asylum Street to Farmington Avenue to the branch store, in all a distance of three and one half miles. The route is heavily traveled and numerous traffic lights and traffic policemen slow up traffic upon it. There is also a comparatively direct route between the two stores by way of Pearl Street, then south to Capitol Avenue, west on Capitol Avenue to Prospect Street and continuing west on the Boulevard to South Main Street in West Hartford. This route is south of the Farmington Avenue route. It is also possible to use the Asylum Avenue route, which is north of Farmington Avenue, for a considerable distance. Woodland Street runs practically north and south and from the intersection of Farmington Avenue and Woodland Street to the intersection of Woodland Street and Homestead Avenue, the scene of the accident, is approximately forty-one hundred feet, while from Asylum and Woodland to Woodland and Homestead Streets is about twenty-four hundred feet. From Woodland Street and Farmington Avenue to the intersection of Tower and Blue Hills Avenues in the Bloomfield section of Hartford, is about 2.6 miles. The defendant had never restricted Ahern as to the route he should use in going to or coming from the West Hartford store.
On the Friday preceding the accident, defendant's manager had discovered Ahern in the act of transporting two girls on one of its trucks and he at once notified him that if such a breach of orders was again committed he would be discharged forthwith. At about noon on the day of the accident, October 4th, 1928, one of defendant's employees, Mrs. Fournier, purposed going down-town in Hartford and, at about two o'clock, going from there to the corner of Tower and Blue Hills Avenues to keep an appointment concerning her own personal business. On the day of the accident Ahern was required to go from the West Hartford to the Hartford store sometime in the afternoon, at what hour does not appear in the finding. One of the girl employees requested Ahern to wait as Mrs. Fournier was going down with him. Finally Mrs. Fournier consented to go with Ahern and boarded the truck. Ahern asked her what time she was due down-town and she replied she had an appointment at Tower and Blue Hills Avenues at two o'clock. Nothing further was said and they started on the trip. After Ahern left the West Hartford store and before he turned from Farmington Avenue, he intended, before going to defendant's down-town store, to go to the corner of Tower and Blue Hills Avenues for the purpose of transporting Mrs. Fournier there, and sometime later, but when does not appear, to report at the down-town store. In turning from Farmington Avenue with that intent and purpose Ahern was violating the defendant's instructions and he continued to do so up to the time of the accident. In transporting Mrs. Fournier from the West Hartford store to the place of the accident Ahern was violating his employer's instructions. The truck was empty at the time of the accident and Ahern was not engaged after leaving the branch store in making deliveries on behalf of his employer, nor did its business require him to turn onto Woodland Street and proceed northward thereon. Ahern drove the truck from the branch store down Farmington Avenue and at some intersecting street turned from the avenue up this street to Asylum Avenue and drove east on that street until he reached the corner of Woodland Street when he turned in a northerly direction up Woodland Street. Mrs. Fournier then asked him where he was going; he replied, "Blue Hills Avenue." She replied, "He was not going to take her there." He answered, "It was his lunch hour." She then ordered him to leave her at the next corner. He made no reply to this. The truck continued on up Woodland Street until it reached a point a short distance north of the intersection of Woodland Street and Homestead Avenue when the plaintiff, who was walking in a northerly direction on the sidewalk on the east side of Woodland Street, was struck and injured by the truck of the defendant while being driven by Ahern whose negligence was the proximate cause of the plaintiff's injuries.
James W. Carpenter, for the appellant (defendant The W. W. Walker Company).
David A. Wilson, for the appellee (plaintiff).
John C. Blackall, for the appellee (defendant Ryan).
The defendant company, the only appellant, will herein be designated, as it has been in the statement, as the defendant. It assigns as error the refusal of the trial court to strike out paragraph six from the finding which recites that the defendant knew that it was the practice of its truck drivers to use the trucks for the purpose of going to lunch and never discharged any of them for using the trucks for that purpose. The only evidence upon this point was that of the manager of defendant who testified that he instructed Ahern not to use the truck except to go back and forth between the stores unless he had specific instructions from him. On cross-examination the manager testified that he did not know of any of the defendant's trucks taking its employees home to lunch, and that this was against the rules. Subsequently to the question, "Can truck drivers take their trucks home to lunch?" he replied, "No, they are not supposed to but I guess they do." This was not a fact within the manager's personal knowledge or information; it was a mere guess or surmise on his part. It fell far short of being testimony as to the practice, and we find nothing in his testimony, or in the questions asked, as to the fact that he had never discharged any of its drivers for using its trucks for that purpose. This assignment of error is sustained.
The appellant also assigns as error the failure of the court to strike out paragraph twenty-three of the finding that: "Ahern, the agent of the defendant company, at the time of the accident, was on his way from the West Hartford to the Hartford store on the business of the defendant company and in the course of the employment." We determine this claimed correction of the finding from the facts in evidence and the reasonable inferences therefrom. Up to the time one of the employees told Ahern to wait and take Mrs. Fournier down-town he purposed going to the main store, or perhaps first to his lunch. After she had mounted the truck and before it had started, Ahern asked her what time she was due down-town and then learned that she had an appointment at Tower and Blue Hills Avenues at two o'clock. After Ahern started from the store and prior to turning off Farmington Avenue his purpose was formed to take Mrs. Fournier to Tower and Blue Hills Avenues. His truck was empty, he had no deliveries to make. It was his lunch hour, during which period he was not on duty for defendant. It did not appear in evidence when he was due at the main store. It is a reasonable inference from the distance to the store and the fact that he had the hour between twelve and one o'clock for his lunch that he was due at the store at about one-thirty. He turned from the most direct route to the store via Farmington Avenue and later drove north on Woodland Street and passed Asylum Avenue which provided another route to the main store. When they crossed Asylum Avenue going north on Woodland Street Mrs. Fournier asked Ahern where he was going to and he replied he was going to take her to Blue Hills Avenue, which was about two miles distant, and she replied that he was not, to let her off at the next corner; she testified that she had thought he would take her down-town where she could get lunch as she had too much time to then go to her appointment. Nothing further was said by Ahern to indicate his intention to abandon his trip to Blue Hills Avenue and to go to the store.
From these facts in evidence it cannot be logically inferred that Ahern at the time of the accident was engaged in the business of the defendant and acting within the course of his employment. On the contrary, the inference is a plain one that he was then engaged solely in the pursuit of his own purposes. It was error for the trial court to refuse to strike out paragraph twenty-three. The conclusion stated as a fact in paragraph twenty-three is later stated as a conclusion of the trial court. The conclusion must be tested by determining whether it may be reasonably drawn from the subordinate facts of the corrected finding to which we have already referred. These show that Ahern was not then engaged upon his employer's business but upon his own personal purpose. None of these facts lend any countenance to the claim that Ahern at the time of the accident was bound for the defendant's down-town store and upon the business of his employment. Whether he was in the scope of his employment is a question apart from whether he was engaged upon his employment, at the time of the accident. Its decision involves consideration of whether it occurred within the time of the employment or not, and at a place, though outside the authorized course of the employment, which either as a matter of law, or as one of fact, could be regarded as an incidental or slight deviation, or, if the deviation was substantial, whether it was so substantial as to constitute it a complete departure, and the weighing of the extent and nature of the deviation, the surrounding facts which characterize and explain it, and the intention and purpose of its making.
The accident happened during the noon hour and at a time when Ahern had authority to operate the defendant's truck in its business. The period was not so unreasonably disconnected with the authorized period of employment as to take the conduct of the servant outside the period for the scope of his employment, which "denotes the field of action within which one is a servant." The conduct of Ahern can only be held to be within the scope of his employment provided it be not unreasonably distant from the authorized area of his service. The unauthorized conduct of a servant may be within the scope of his employment when it is found to be similar to or incidental to the conduct authorized. This case must be found to fall within this class if the judgment of the trial court is to be sustained. The determination involves consideration of several matters of fact. One of these is whether the act the servant was engaged upon was outside the business of his employer, or whether it had been entrusted to him. Unquestionably the particular matter Ahern was engaged upon was outside the scope of his employment. But whether the extent of his departure from the scope of his employment, or the area of his service, was so unreasonable as to make of his act of deviation an independent journey of his own rather than a mere detour, or one incidental to his employment, is a question of degree, and ordinarily one of fact, unless the deviation is so great, or the conduct so extreme, as to take the servant outside the scope of his employment and make his conduct a complete departure instead of a deviation still incidental to his employment. Schrayer v. Bishop, 92 Conn. 677, 679, 104 A. 349. In view of the several routes open to Ahern, to none of which had his employer restricted him, we should not be prepared to hold as matter of law that at the time of this accident he was in a place so unreasonably distant from the route of his employment as to take him outside its scope. But if the accident had occurred at Blue Hills Avenue, some two miles distant, and he had gone there for a purpose of his own, we should not have hesitated to hold, as matter of law, that he was then outside the scope of his authority.
The facts of this case bring into play another factor of controlling importance. When Ahern crossed Asylum Avenue and drove north on Woodland Street for the purpose of going to Blue Hills Avenue, his objective, if completed, would have carried him outside the scope of his employment, for the deviation would have been an unreasonable distance from the authorized area of his employment. This case cannot be determined by merely ascertaining whether the place of the accident was within the area of the employment. Since Ahern at the time of the accident was upon a journey of his own but had not passed so far beyond the area of his employment as to be in the eye of the law outside its scope another element enters into the determination, that is, whether at that very time he was then on the journey he purposed. His primary objective being Blue Hills Avenue, that must depend upon whether he had, prior to the accident, changed his purpose and determined to abandon his intended objective and renew the course of his employment before he had reached a point unreasonably distant from the authorized area. Ahern's primary intention was formed shortly after he left the store and before he turned off Farmington Avenue to proceed on the way to Blue Hills Avenue. He openly expressed this intention when the truck had crossed Asylum Avenue and was proceeding northerly on Woodland Street, in reply to an inquiry of Mrs. Fournier as to where he was going. She replied he was not going to take her there and ordered him to let her get off at the next corner which was Albany Avenue. To this Ahern made no reply and neither by word nor conduct indicated his purpose as to stopping and letting her off, or as to his immediate or ultimate destination. There is nothing in the finding upon which to predicate an inference that he had changed his purpose unless it can be found in his companion's statement when she learned for the first time that he was going to take her to Blue Hills Avenue. Her expressed determination that he was not to take her there and her order that he was to let her out at the next corner is too small and insecure a peg on which to base any inference as to his change of purpose. Weighing the facts in connection with his intention to go to Blue Hills Avenue and with his continuance in this purpose up to the time of the accident, we are obliged to hold that he had then completely departed from his employment.
There is no occasion to analyze or collate our cases upon this general subject. None of them raise the question of the driver's intent in the precise manner this case does. There are, however, at least two of our cases which enumerate the intent of the servant in making the deviation as a factor to take into account in considering the nature and extent of the deviation. In Ritchie v. Waller, 63 Conn. 155, at page 165, 28 A. 29, we say: "To decide the question in a case like the present, the trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it."
Similarly, in Butler v. Hyperion Theatre Co., Inc., 100 Conn. 551, at page 557, 124 A. 220, we say: "All the circumstances of the employment and of his conduct, including his intent, are to be considered by the trier in determining as a matter of fact whether or not in the particular conduct involved he was or was not acting in the execution of the master's business within the scope of his employment, although disobeying some instruction."
Two paragraphs of the draft-finding we find should in substance have been added to the finding at the request of the defendant. Paragraph nineteen, that Ahern intended when he drove from the store in West Hartford to go to Tower and Blue Hills Avenues for the purpose of transporting Mrs. Fournier there, not at her request, but upon his own initiative. There is no direct evidence of Ahern's intention in this respect, but we find it to be a legitimate inference from the fact that upon inquiry of Mrs. Fournier after she had boarded the truck he learned that she had an appointment on Tower and Blue Hills Avenues at two o'clock, that he turned off Farmington Avenue and proceeded toward this destination and when he had crossed Asylum Avenue and was proceeding northerly on Woodland Street in response to her question, he said he was going to Blue Hills Avenue. From these and other circumstances we think this inference a necessary one to draw.
Paragraph twenty, that Ahern, in leaving the store, was violating his employer's instructions and continued so to do up to the time of the accident is the uncontradicted evidence; the finding that he did this with that intent was disposed of in the inclusion in the finding of paragraph nineteen.
The corrections of the finding in the four respects referred to have been incorporated in the statement of facts preceding the opinion. Upon the corrected finding we are of the opinion that there was a temporary abandonment of his employment by Ahern at the time of the accident, that he then was engaged in serving his own purpose, and that the defendant-employer is not responsible for injuries caused the plaintiff by Ahern's negligence during the period of his temporary abandonment.