Butler v. Hyperion Theatre Co., Inc.

Curtis, J. The first reason of appeal is that the court erred in denying the defendant’s motion to set aside the verdict as contrary to the evidence, which was made a part of the record. The essential question presented by this motion is whether under the evidence the jury could have reasonably found a verdict for the plaintiff. *554 This ground of error is based on the claim that the evidence establishes conclusively that at the time of the accident the driver of the car was disobeying instructions, and was, therefore, not engaged in the execution of the defendant’s business within the scope of his employment. The defendant claims that the evidence shows that Garrison had specific directions to bring the car to the front of the Hyperion Theatre on Chapel Street at noon of each day and leave it there during the luncheon hour, and then go and get his lunch and return for the car and new instructions; that on this day he did not bring the car and leave it in front of the theatre at noon, but used the car at that time and started to go to his home in it for lunch contrary to his unmodified instructions. The defendant claims that these facts show that at the time of the collision he was not using the car in the execution of the defendant’s business, and therefore the defendant was not liable for his negligence. The defendant claims, apparently, that this act of the servant contrary to specific instructions is necessarily outside the scope of his employment, and not the act of the master. The law falls far short of sustaining such a strict interpretation of an act of a servant in disobedience to a specific direction of a master. We say in Loomis v. Hollister, 75 Conn. 718, 723, 55 Atl. 561: “The servant may be engaged in the execution of the master’s business within the scope of his employment, although, in conducting that business, he is negligent, disobedient and unfaithful.” It was pertinently said by Willes, J., in Limpus v. London General Omnibus Co,, 1 Hurl. & Colt. 538, that “the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability.” An inquiry as to a master’s liability for a servant’s *555 negligence does not therefore end in his favor, when the fact appears that some instruction by the master to his servant has been disobeyed, which disobedience of the servant created the condition under which the accident in question occurred. The intent of a driver of a vehicle in following a certain course of conduct, even if disobedient, is a material element in determining whether or not his conduct was in the execution of the master’s business within the scope of his employment, or was conduct indulged in contrary to his duty and solely for a purpose of his own. Donahue v. Vorenberg, 227 Mass. 1, 116 N. E. 246; Ritchie v. Waller, 63 Conn. 155, 161, 28 Atl. 29. Under the evidence in this case the jury could reasonably have found that Garrison, the servant, was delayed in his work on the forenoon of the day in question and was late, and that he reasonably believed he could perform the essentials of his employment in bill posting with greater advantage to his master, if instead of driving late to the theatre at luncheon time, he drove first to his home and lunched and then drove to the theatre for instructions for his afternoon work, and that solely with intent to further and aid in the performance of his master’s business, he adopted that course of conduct. It is apparent, therefore, that the jury could reasonably have found that at the time of the collision Garrison was engaged in the execution of the master’s business within the scope of his employment, and it could not be questioned that with such a finding a verdict for the plaintiff could reasonably have been found. The situation disclosed by the evidence presents the condition set forth in Loomis v. Hollister, supra, as presenting a question of fact for the jury. We there say: “But where it is conceded that a servant is using his master’s team within the scope of his employment and that he departs from the instructions of his *556 master for some purpose of his own, and the conflicting claims are made, on the one hand that the departure indicated a disobedient or unfaithful conduct of his master’s business, and on the other hand that the departure indicated an abandonment of that business and a taking of the team by the servant without authority and solely for the transaction of his own business, and the circumstances supporting these conflicting claims are of such doubtful import that a trier might, not unreasonably, reach either conclusion, a question of fact is presented which should be determined by the jury in view of the instructions of the court as to the true meaning of the rule of law governing the master’s liability in such case.” To the same effect see Ritchie v. Waller, supra, and Perry v. Haritos, 100 Conn. 476, 124 Atl. 44. As appears in Loomis v. Hollister, supra, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business and a taking of the vehicle without authority and solely for the transaction of his own business. This is ordinarily a question of fact for the jury or other trier. Ritchie v. Waller, supra; Perry v. Haritos, supra. The court did not err in refusing to set aside the verdict as against the evidence. The claim of error based on the refusal of the court to reduce the amount of the verdict, we find not sustainable. An examination of the evidence as to the plaintiff’s damages arising from the injuries suffered by her, shows that the jury could reasonably have found the verdict rendered in that particular. The allegation of error in the court’s denial of the motion to direct a verdict for the defendant is not well taken, as such denial is not assignable error. Dimon v. Romeo, 99 Conn. 197, 203, 121 Atl. 352. *557 The defendant made nine requests to the court to charge the jury, which the court refused to give; the refusal to give each of these requests is alleged as an error. The first request was in substance given; the second, third, fourth, fifth, seventh, ninth, fourteenth, and fifteenth requests are to this effect: that if Garrison, in violation of his instructions, used the car to go to his home for lunch, your verdict must be for the defendant. The vice of each of these requests is that it is in substance a request that the court direct the jury to render a verdict for the defendant if they find that Garrison disobeyed an instruction. As we have already said, the servant may be engaged in the execution of the master’s business within the scope of his employment, although in conducting that business he is negligent, disobedient and unfaithful. In other words, the mere disobedience of a servant does not necessarily absolve the master from liability. 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. Loomis v. Hollister, supra. The eight requests to charge not given were properly refused, because they involve a direction of a verdict where the evidence under our law creates a question of fact for the jury. Assignments of error numbered thirteen, fourteen, sixteen, seventeen and eighteen, relate to claimed errors in certain specified portions of the charge. The defendant’s objection to these various portions of the charge is in substance that although there was undisputed evidence that the defendant had given Garrison specific directions “to bring the automobile in front of *558 the Hyperion Theatre on Chapel Street at noon each day and leave it there during the luncheon hour, ” and that on the day in question Garrison disobeyed this instruction, and drove the car elsewhere without receiving permission from the defendant, and while he was so driving the car elsewhere the collision in question occurred, yet the court left it for the jury to say whether or not the servant, so disobedient, was then acting within the scope of his employment in the execution of the master’s business. The defendant claims that under the admitted fact of the disobedience of the servant in the use of the car at noon on the day in question, the jury should have been charged unequivocally that the plaintiff could not recover. The vice of the defendant’s claim is the same as that underlying the preceding claims of error, to wit, a claim that it is the law that conduct of a servant in disobedience of a master’s instruction, necessarily and of itself absolves the master from liability for negligence of a servant while so disobeying instructions. We have already shown that this view is a misconception of our law. These portions of the charge objected to correctly leave it for the jury to determine whether, under all the circumstances, the driver in his conduct at the time of the collision was engaged in the execution of the master’s business within the scope of his employment. Ritchie v. Waller, supra; Loomis v. Hollister, supra; Perry v. Haritos, supra. The assignments of error are not well taken. The nineteenth assignment of error is that the court improperly instructed the jury as follows: “In regard to this statutory rule of conduct, if there was a violation of this statutory rule on the part of the operator of the motor car that would be negligence in and of itself.” The defendant asserts, in the first place, that the complaint did not allege any claim of a breach of a statutory rule of conduct. The complaint alleged the *559 negligence of the driver as follows: “The injuries and consequent damage to the plaintiff were caused solely by the negligent, careless and reckless conduct of the operator of the defendant’s automobile in that he ran the automobile at that place without due warning, without keeping a sharp lookout for foot passengers, without having his automobile under control so that he could avoid running into the plaintiff; in operating his automobile at a high and unreasonable rate of speed, having reference to the time and place, the condition of the highways at the intersection and the traffic thereon and the presence of foot passers at that place, and in not operating the automobile at that intersection lawfully and with due regard to the rights of others.” The final allegation of “not operating the automobile at the intersection lawfully,” is a sufficient allegation of any statutory rule of conduct applicable to driving at an intersection. If the defendant desired a more particular statement as to the unlawful operation charged, it should have moved for such a statement. Where the State regards certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty in respect to those who may be injured thereby. Such a breach of duty is established by proving the commission of the illegal act. The commission of the illegal act in such case is commonly spoken of as negligence. Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 206, 56 Atl. 498. There was no claim in this case that any peculiar conditions at the intersection modified the servant’s statutory duty. The court did not err in charging the jury in the terms of the above excerpt from the charge. A ground of error is alleged in relation to a ruling upon the admission of evidence. A witness testified for the plaintiff that he was standing at the corner of Foote Street and Dixwell Avenue and saw Garrison *560 drive into Foote Street at a rapid rate. On cross-examination the defendant endeavored to show that the witness was not in a position to see or know the speed of the car. On redirect examination, the following occurred: “Q. Why did you keep your eyes on this truck from the time you saw it come out of Webster St.? A. The rapid rate it was going was all that attracted my attention. Q. Do you remember or not whether you called anybody’s attention to that rapid rate? ” To this question the defendant objected, and upon its admission duly excepted. The witness answered, “I did.” This was clearly admissible. “Any ancillary facts tending to arrest and fix the attention of a witness may be shown.” The degree of attention with which a witness has observed phenomena testifed to by him is relevant to affect its probative force. Chamberlayne on Evidence, Vol. 3, p. 3378, § 2500; Tomlinson v. Derby, 43 Conn. 562. There is no error. In this opinion the other judges concurred.