Summary
In Neville v. Adorono, 123 Conn. 395, 195 A. 613, there is a discussion of deviation from and return to the scope of employment.
Summary of this case from Davis v. KukarOpinion
In deciding whether an unauthorized deviation from the employment is so slight and not unusual as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, the trier must take into account, not alone the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant making it. Only when the deviation is clearly of the one character or the other can its effect upon the employer's liability be determined as matter of law. In most cases it is a question of fact, depending upon the circumstances. The like is true when a servant is found to have departed from his employment but it is claimed that, before the occurrence of the event from which the cause of action arose, the servant had resumed his employment. In the present case held that the effect of the course of conduct of the driver of the defendant's truck, who drove it after work to his sister's home to make a visit instead of driving it to his home and putting it away as he was directed to do by the defendant, upon the latter's liability for the driver's negligence on his way home from his sister's, was a question of fact as to which, upon the finding, the court's conclusions were warranted.
Argued October 14th, 1937
Decided December 9th, 1937.
ACTION to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in Middlesex County and tried to the court, Inglis, J.; judgment for the defendant and appeal by the plaintiff. No error.
The plaintiff was a passenger in an automobile with which a dump truck owned by the defendant and operated by Frank Lastrina was in collision at or near the corner of Broad and William Streets in Middletown. No question is now made as to the negligence of Lastrina or the freedom of the plaintiff from contributory negligence. Aside from objection to a statement in the finding that "there was nothing in the relationship between Adorno and Lastrina from which the implied consent of Adorno to such use of the truck by Lastrina [as he was making at the time] could be inferred," and this is a permissible inference from the other facts found, the assignments of error relate to the conclusions to the effect that at the time of the collision the driver, Lastrina, was not acting within the scope of his employment by the defendant.
The memorandum of decision sets forth the material facts found and the legal principles involved, as follows:
"The substantial question of fact . . . is as to whether, at the time of the collision, Lastrina was operating the truck in the course of his employment as Adorno's agent. It is agreed that the truck which Lastrina was operating was owned by Adorno. The statute (Cum. Sup. 1935, Sec. 1661c) raises a presumption, therefore, that Lastrina was the agent of Adorno and was operating the truck in the course of his employment. The presumption raised by the statute is not one which is overcome as soon as any substantial counter vailing evidence is introduced but rather is one which shifts the burden of proof to the defendant and is effective until the defendant satisfies the trier by a fair preponderance of the evidence as to what the true facts of the situation were. O'Dea v. Amodeo, 118 Conn. 58 [ 170 A. 486].
"With this in mind the following facts are found: Lastrina was regularly employed by Adorno to drive the truck and it was a part of his duty to take care of the truck. It was his duty to buy gasoline and oil and make minor repairs, and it was also his duty, subject to Adorno's directions, to keep general oversight over the truck. Up to the Saturday preceding the accident the truck had been employed on jobs in the neighborhood of Hamburg and Salem. Two leaves of the springs on the truck had, however, become broken and pursuant to Adorno's telephoned instructions on the morning of Monday October 26th, Lastrina drove the truck to Middletown, where both he and Adorno lived, for repairs. After purchasing the necessary materials, Lastrina and his brother started at about 5 p. m. on that day to make the necessary repairs. They did the work in the rear of the Poliner building which is located on Main Street in Middletown. Adorno himself was present during all of the time that the work was in progress. While the work was going on, the two Lastrinas were talking about the fact that a sister of theirs who lived in Ansonia was visiting another sister who lived on William Street about three blocks west of Main Street and Frank Lastrina announced his intention of going to see that sister after the work was completed. Adorno overheard that part of the conversation which related to the fact that the sister was in town but did not hear Lastrina say that he was going to call on her.
"Adorno had no garage in Middletown for the parking of the truck and the custom had been to park the truck overnight on the job when it was outside of Middletown and, when it was in Middletown, for Lastrina to park it overnight at his home on College Street east of Main Street either in a driveway or on the street. When the repair work was completed at about 7:30 p. m., Adorno directed Lastrina to go home, put the truck away and be ready to drive it to the job in the morning. The most direct course for Lastrina to take to get to his home would be to drive south on Main Street and turn east on College Street. Instead of driving the truck directly to his home, Lastrina drove it, by just what course it does not appear, to his sister's home on William Street. William Street runs parallel with College Street and is the next street south of College Street. The sister's home to which he went was located in the third block west of Main Street.
"Adorno had no knowledge of Lastrina's intention to drive the truck to his sister's home and did not know that he had done so until after the collision with the plaintiff's car. The truck itself was a heavy dump truck, not such a vehicle as is ordinarily used for the transportation of people alone but one designed for the carrying of materials. There was nothing in the relationship between Adorno and Lastrina from which the implied consent of Adorno to such use of the truck by Lastrina could be inferred. Lastrina stayed at his sister's home until about 10:30 p. m., and proceeded easterly on William Street across Hamlin Street to Broad Street where the collision occurred. It had been his intention to continue on William Street across Broad Street and across Main Street to Water Street, which is the street parallel with Main Street and next east, then north on Water Street to College Street and then west on College to his home.
"The broad principle of law applicable to this situation is, as stated in Stone v. Hills, 45 Conn. 44, 47, as follows: `For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible' It should always be borne in mind that `this law is based on a rule of public policy, which declares that substantial justice is on the whole best served by making a master responsible for the injuries caused by his servant acting in his service, when set to work by him for his own benefit.' Loomis v. Hollister, 75 Conn. 718, 722 [ 55 A. 561]. That is to say the reason why a master is held responsible for injuries caused by his servant is that it seems to be just that if one is getting the benefit of the services of another he should also be held to pay for such injuries as others may receive out of that service. If therefore a servant is on a venture of his own not directed by the master and from which the master is receiving no benefit, then justice does not require that the master be held responsible for the servant's acts and omissions. Barnes v. Cuzuina, 111 Conn. 335 [ 149 A. 850]; Greenberg v. Lotz Asbestos Co., 109 Conn. 441 [ 146 A. 834]; Adomaitis v. Hopkins, 95 Conn. 239 [ 111 A. 178].
"Whether a servant is on an errand of his own or is rendering services for the benefit of his master and therefore within the scope of his employment is ordinarily and except in cases which are clear either way a question of fact rather than a question of law. Ackerson v. Jennings Co., Inc., 107 Conn. 393 [ 140 A. 760]; Butler v. Hyperion Theater Co., Inc., 100 Conn. 551 [ 124 A. 220]; Ritchie v. Waller, 63 Conn. 155 [28 A. 29]. The present case is not in line with McKiernan v. Lehmaier, 85 Conn. 111 [ 81 A. 969], . . . and Mastrilli v. Herz, 100 Conn. 702 [ 124 A. 835], where it was held either as a matter of law or of fact that where the owner of an automobile has given his chauffeur permission to drive it off on his, the chauffeur's, own business with an express or implied direction to return it to a particular place in order to continue his services, then as soon as the chauffeur starts on his return he is back within the scope of his employment, because in the present case it cannot be found that the master, Adorno, had either expressly or impliedly consented to the use of the truck by Lastrina for the latter's own errand.
"In the present case there had been a very material diversion from the master's business by Lastrina. This is true both because he had gone several blocks off the course which he should have pursued to accomplish Adorno's purposes and also because he was using the truck for about three hours longer than he should have been using it. He clearly was conferring no benefit on Adorno by calling on his sister and he was doing it without Adorno's consent and indeed in direct violation of Adorno's parting instructions. It is therefore concluded as a matter of fact that, at the time of the collision Lastrina was engaged solely on his own errand and was not acting within the scope of his employment as Adorno's agent."
Jacob Schwolsky, with whom were Bertrand E. Spencer and John W. Joy, for the appellant (plaintiff).
DeLancey Pelgrift, for the appellee (defendant).
In deciding whether an unauthorized deviation from the employment is so slight and not unusual as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment "the trier must take into account, not alone the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant making it." Ritchie v. Waller, supra, p. 165; Hickson v. Walker Co., 110 Conn. 604, 610, 149 A. 400. "No definite and determinative test can be made other than to apply to each situation the standard, was the act of the servant reasonable in the light of his employment and the circumstances surrounding his act? Ordinarily the application of this standard to the facts will be one of fact." Greenberg v. Lotz Asbestos Co., supra, p. 446; Butler v. Hyperion Theatre Co., Inc., supra, p. 556. Only when the deviation is clearly of the one character or the other can its effect upon the employer's liability be determined as matter of law. In most cases it is a question of fact, depending upon the nature and extent of the deviation and all the attendant circumstances. Ritchie v. Waller, supra, p. 161.
The like is true when a servant is found to have departed from his employment but it is claimed that, before the occurrence of the event from which the cause of action arose, the servant had resumed his employment. "The purpose of the servant coupled with a reasonable connection with the period and the place of the alleged resumption in their relation to the character of the employment are all elements to consider. The place must be within the immediate area or zone of his employment when the deviation first began." Greenberg v. Lotz Asbestos Co., supra, p. 448. The time elapsed between the departure from employment and the claimed resumption also would be among the significant circumstances. See notes, 22 A. L. R. 1409, 45 A. L. R. 486, 68 A. L. R. 1056. In the cases in this State in which liability has been imposed upon the employer for negligence of a servant if the latter is found to have been, at the time, returning to his normal duties after a deviation or departure, the original deviation or departure was by authority or with consent of the employer. Mastrilli v. Herz, supra, p. 706, and cases cited. In this case the effect of the driver's course of conduct upon the defendant's liability was a question of fact as to which, upon the finding, the trial court's conclusions were warranted.