Opinion
No. 177
Decided October 25, 1948.
Master and servant — Entrusting truck to employee to go home over holiday — Using truck on holiday to solicit business for employer — Deviating from course on personal errand — Accident on return home from customer's place — Whether accident occurred in course of employment a jury question — Cross-examination of witness as to prior statements — Collision with truck parked on side of highway — Conflicting evidence — Jury's finding how collision occurred, not disturbed.
1. Where a collision between an automobile proceeding along a highway and a truck parked on the side of the highway could only have occurred either by the automobile leaving the traveled portion of the highway or by some part of the truck extending on or over the traveled portion, and where the evidence is conflicting, the finding of the jury as to how the collision occurred in such respect will not be disturbed.
2. It is not error to permit plaintiff to question an employee of defendant called by him as a witness concerning prior statements made by him, and his testimony that what he previously stated was the fact is evidence of that fact.
3. The evidence tended to show that an employer entrusted a truck to his employee to make certain deliveries for the former and then to use it in going to employee's home, keep it over July 4th and return it to employer's place of business in reporting for work; that this employee had authority to solicit orders on behalf of employer and on the late afternoon of July 4th started from employee's home in the truck to endeavor to make a sale for employer; that, before employee reached the place of the prospective customer, he discovered that he had no cigarettes and thereupon concluded to go to a village beyond the prospective customer's place to get some, which he did; and that, within less than two hours, he returned toward the customer's place, intending to solicit an order from him, but when he approached he looked for the customer's automobile, which was usually parked in the yard when he was at home, and not seeing it, concluded that the customer was not at home and therefore proceeded to his own home without stopping, and parked the truck on the side of the highway and was engaged in opening the gate to his yard, when a collision took place between the truck and an automobile. Held: The issue of whether the employee was engaged in and about the employer's business in the course of his employment at the time of the collision was properly submitted to the jury.
APPEAL: Court of Appeals for Clermont county.
Messrs. Nichols, Speidel Nichols and Mr. Harold Predmore, for appellee.
Messrs. Rendigs Fry and Messrs. Ely, White Davidson, for appellant.
It is admitted that a collision occurred between an automobile in which the plaintiff was riding and a truck owned by the defendant. The automobile was moving along a public highway and the truck was stationary within the bounds of that highway.
(1) Whether the collision was caused by the automobile departing from the traveled portion of the highway or by the truck or some portion of it extending on or over the traveled portion was in dispute, and the evidence was conflicting. The jury found for the plaintiff. The jury must have found that some part of the truck extended on or over the traveled portion of the highway. On this record, we must accept that fact as established. And accepting that fact, there was ample evidence to justify the jury in concluding that the truck was parked in a negligent manner, and that such negligence contributed to the collision, creating a liability on the part of the negligent person for injuries directly resulting therefrom.
(2) There was no evidence that the plaintiff took any part in the operation of the automobile or that he had the right to control its operation. He was a guest. Any negligence of the operator could not be imputed to plaintiff. It is true that the court left to the jury the issue of whether the operator was the plaintiff's agent, but this was done at the defendant's request, and, of course, error cannot be predicated upon it. The charge on the subject was correct.
(3) It is urged that any negligence of the operator of the truck cannot be imputed to the defendant, because he was not acting for and on behalf of the defendant and in the scope of employment at the time of the collision. The evidence on this issue is as follows:
The defendant's feed and coal business was located in Reading, Ohio. It owned the truck with which the automobile collided. Gordon Russell was employed by it as a truck driver and made deliveries for it. He lived on the highway where this collision took place. He had on many occasions used this truck to go to his home from the defendant's place of business and return thereto, keeping the truck overnight in the yard at his home. Russell had some authority to solicit orders for defendant and in one instance had sold coal for defendant to one Jones who lived a mile or a mile and one-half beyond Russell's home on a road that intersected the highway in question. Sometime, perhaps a month, before this accident, he had been authorized to solicit another order from Jones, but had done nothing about it.
On the day of the collision, according to the testimony of Russell, he concluded to try to sell some coal to Jones and started from home in the truck for that purpose. Before he reached the place where the highway was intersected by the road on which Jones lived, Russell discovered that he had no cigarettes and concluded to go on beyond that point, a mile or so, to Goshen to get cigarettes. He went on to Goshen where he stayed an hour or so and then started back. As he approached the road on which Jones lived, Russell could see Jones' house and yard. He knew that Jones had the habit of parking his automobile in his yard, which could be seen from the highway.
On this occasion Russell looked as he was returning and not seeing the Jones' automobile in the yard concluded that Jones was not at home, and so proceeded to his (Russell's) home without seeing Jones. Russell was obliged to cross the highway and open a gate in order to get into his yard. To open the gate he had to park the truck. It was while the truck was parked and while he was pushing the gate open when the collision occurred.
All these details were testified to by Russell. It is assigned as error that the court permitted counsel for plaintiff, who had called him as a witness, to refresh his recollection by calling his attention to statements made by him on previous occasions.
We see no error in this respect. The manner of conducting an examination rests largely in the discretion of the trial court. When it is considered that Russell was the employee of defendant at the time of this accident and at the time of trial, and that he was charged with responsibility for this collision, we can see no abuse of discretion in allowing this method of examination. There was no harassment of the witness and, when his memory was refreshed, he testified that what he had said on the prior occasion was the fact.
But it is strongly urged that this testimony is insufficient to show that Russell was acting for and on behalf of the defendant at the time of this collision, that he departed from the scope of his employment when he went to Goshen for cigarettes, thereby becoming engaged in his own enterprise, and that he never returned to the business of the defendant.
The evidence shows that, as Russell approached the Jones' residence in each instance, his purpose was to interview Jones and endeavor to sell coal to him. That was Russell's original purpose when he left his home, and it was his purpose when he left Goshen. To complete either purpose required his return to the place where the collision occurred. Had he actually solicited Jones, Russell's purpose on his return trip would have been to reach his home, but still it would have been his employer's business, because the return was a mere incident of his going. Amstutz, Admr., v. Prudential Ins. Co. of America, 136 Ohio St. 404, 409, 26 N.E.2d 454. It was necessary in order to complete the execution of the authority conferred upon him.
It is not at all unusual to have the question, whether the employee is acting within the scope of his authority, turn upon the motive or intent of the employee. If his purpose is to promote the business of the employer, the act may be within his authority, but if the purpose is to serve some other purpose and no purpose of his employer, it is without his authority. And usually such purpose or intent can be proven only by circumstantial evidence. This case is distinctive only in that the agent himself testified as to his intention. That the employee's intent or purpose is determinative in many situations is clear from the cases. The second paragraph of the syllabus of Nelson Business College Co. v. Lloyd, 60 Ohio St. 448, 54 N.E. 471, 71 Am. St. Rep., 729, 46 L.R.A., 814, is:
"When the act complained of may or may not be, from its nature, in the course of the servant's employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence."
The accident in the instant case occurred at a place where Russell would have operated the defendant's truck had there been no deviation. The accident did not occur on that part of the route necessary to accomplish the purpose personal to Russell. As to the effect of a deviation by an employee from the course of his employment, it is stated in 35 American Jurisprudence, 990, Section 555:
"A temporary deviation or departure from the employer's business merely suspends the relation of master and servant and the liability of the master for the servant's acts during the period of the departure; when the object of that departure has been accomplished and the servant reengages in the discharge of his duty, the responsibility of the master for the servant's acts immediately attaches. Where there is a temporary abandonment, the master again becomes liable for the servant's acts when the latter once more begins to act in his business."
And, at 992, Section 557:
"According to the rule of many courts, the employer may be held liable for the torts of his servant which are committed after the personal business of the latter has been concluded and while he is returning to the place where he departed from the designated course. Some courts hold that the mere fact that an employee using the car for his own business or pleasure is returning to the master's garage, or to his employment, when the injury occurs, does not alone constitute such a resumption of his master's business as will render the master liable for the injury. The truth is that no hard and fast rule on the subject either of space or time can be applied. It cannot be said of a servant in charge of his master's vehicle, who temporarily abandons his line of travel for a purpose of his own, that he again becomes a servant only when he reaches a point on his route which he necessarily would have passed had he obeyed his orders."
We have considered other errors assigned and find none of a prejudicial nature. We are of the opinion that the issues were fairly submitted to the jury under a charge containing no substantial error.
For these reasons, the judgment is affirmed.
Judgment affirmed.
MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment.