Carey v. Honolulu Iron Works Co.

*458 OPINION OP THE COURT BÍ BANKS, J. (Perry, C. J., dissenting.) Tlie plaintiff sued the defendant for damages on account of personal injuries received by him and recovered judgment in the sum of $3000. The defendant has brought the case here on a bill of exceptions. On the 14th day of June, 1927, about four o’clock in the afternoon, the plaintiff, while standing on the sidewalk on Alakea street in the city of Honolulu, was knocked down and injured by an automobile truck which was the property of the defendant and which was at the time being driven by one Kuhns. . There is no denial that the plaintiff’s injuries were caused solely by the negligence of Kuhns in operating the truck. Kuhns was employed by the defendant as a truck driver and it was his duty to deliver the defendant’s goods and wares to its various customers throughout the city. It 'was also his duty when his daily deliveries were completed, to return the truck to the defendant’s garage'on Marine street. A 'short time before the accident Kuhns had made his last delivery for the day at the pumping station on Beretania street. He then drove makai on Alapai street to King street, a distance of two blocks. There he turned Ewa and drove along King street to where it is intersected by Alakea street. Up to this point it is not disputed that Kuhns was going in the direction of defendant’s garage where the truck was to be left nor is there any doubt that up to this point he was *459 engaged solely in the defendant’s business. When he reached the intersection of King and Alakea streets he turned mauka on Alakea street (a direction at right angles to that in which he was going and opposite to that in which was the defendant’s garage) for the purpose of reaching the Union Trust Company building where he wished to stop in order to procure from the Honolulu Finance & Thrift Company (which had its office there) an extension of a personal loan. This building is four hundred feet from the point where Kuhns turned into Alakea street. When he was about twenty feet from the front of the building he drove the truck so close to the sidewalk where the o plaintiff was standing that the plaintiff was knocked down and injured. Kuhns, who seems not to have known at the time that the plaintiff had been struck, brought the truck to a stop in front of the building and went inside and transacted his business. When this was accomplished he resumed his journey continuing mauka along Alakea street until he reached Hotel street (the first intersecting street) where he turned Ewa and proceeded to the defendant’s garage. Kuhns, who had been in the defendant’s employ for several years, had never been instructed by the defendant to take any specific route in returning the truck he was operating to the garage and, by implication at least, this was left entirely to Kuhns’ own choice. It was contended by the defendant in the court below and is contended here that when Kuhns turned from King into Alakea street for the purpose of going to the Union Trust Company building to transact his own business he thereby, as a matter of law, completely abandoned the defendant’s business and was therefore wholly engaged in his own business when the accident occurred.. If this thesis is sound the defendant is not *460 liable in this action. The court below thought it unsound and refused instructions requested by the defendant directing the jury to return a verdict in its behalf. At the plaintiff’s request instructions were given in which was submitted to the determination of the jury tlie question of whether Kuhns had at the time of the accident completely abandoned the defendant’s business and was engaged solely in business of his own. The jury ¡was further instructed at plaintiff’s request that if it believed Kuhns had completely abandoned the defendant’s business the verdict should be for the defendant. At most the submission of the question of abandonment .to the jury was under the undisputed facts all the defendant was entitled to. Kuhns had not, when the accident occurred, completed the duty he owed the defendant for that day. It was just as much his duty to return the truck to the defendant’s garage on Marine street after delivering the defendant’s, goods as it was to deliver the goods. The duty to deliver the goods had been performed but the duty to return the truck to the garage remained unperformed. In the performance of this latter duty the choice of route was left entirely to Kuhns. If, instead of being injured on Alakea street, the plaintiff had been injured on King street before Kuhns turned into Alakea street there would be no doubt that Kuhns’ negligence would be imputable to the defendant on the ground that his act of negligence was committed while in the perr formance of his duty to the defendant. Does the mere fact that Kuhns, in order to transact some business of his ownj chose a slightly indirect route over which to perform his duty to the defendant show, as a matter of law, such a complete, though temporary, abandonment of the duties of his employment as to absolve the defendant from liability? An affirmative answer to this *461 question would be contrary to the great weight of judicial precedent and would open a wide door to fraudulent collusion between the servant and the master through which the latter could find an easy escape. A leading case on this subject is Ritchie v. Waller, 63 Conn. 155. The essential facts in that case were as follows: The defendant was the owner of a farm at a place called Trumbull. He had for sometime been accustomed to get manure from a brewery at Bridgeport. On the day of the injuries complained of the defendant had sent his servant to Bridgeport to get a load of manure. After getting the manure the servant started on his return journey to Trumbull but instead of continuing along the most direct route he made a detour of some distance in order to go to a shoemaker’s shop where he desired to have his shoes repaired. He left the team of mules standing in front of the shop while he went inside to see to his shoes. The mules trotted away and the wagon to which they were attached collided with the plaintiff’s wagon to the plaintiff’s damage. There was a verdict and judgment for the plaintiff, which on appeal was affirmed. In its opinion the supreme court said (p. 165) : “In making the detour Blackwell was still in charge of his master’s team, though on a roundabout way home, carting manure to his master’s farm. That was his main purpose and object throughout the entire transaction. In the language of the case last cited, even if the motive was some purpose of his own, he was still about his usual employment, although pursuing it in a way and manner to subserve such purpose also.” In Gorry v. Boehmer Coal Co., 241 S. W. (Mo.) 976, 978, the servant was employed by the defendant as a collector and solicitor - and in the performance of his duties drove a Ford car which was the property of the *462 defendant! After the completion of his day’s work it was his duty to return the car to a garage. On the evening of a certain day while he was doing this he saw a lady friend who lived in another part of the town and in a direction away from the garage. He offered to take her home and while doing so, by the careless operation of the car injured the plaintiff. In its opinion affirming the judgment that was rendered in ■the plaintiff’s behalf the court said: “In the case at bar, the driver of the automobile was not a chauffeur. He was furnished an automobile by the defendant to carry on his business of collecting and soliciting for the defendant in practically his own way. The evidence does not disclose that he used any particular route in going home at night, or was required or expected to return at any particular time. He did not get through with his day’s work at any particular time or place, and under such circumstances, and the facts as heretofore stated, the mere fact that he was traveling an indirect route for the purpose of taking this lady to her home, instead of going direct to the garage, was a mere incident, and it should not be held, as a matter of law, that he had departed from the scope of his employment.” In D’Aleria v. Shirey, 286 Fed. 523, while the facts were somewhat different from those in the instant case, the circuit court of appeals, ninth circuit, laid down the following rule: “If a servant, while about his master’s business, makes a deviation of a few blocks for ends of his own, the master is nevertheless liable.” The same rule is adopted in the following cases: DeBello v. Reep & Blackford, 127 Atl. (N. J.) 522; Fostrom v. Grossman, 161 Minn. 440; Orris v. Tolerton & Warfield Co., 207 N. W. (Iowa) 365; Western Pacific R. R. Co. v. Industrial Accident Commission, 193 Cal. 413; Drakenberg v. *463 Knight, 178 Wis. 386; Crowell v. Duncan, 145 Va. 489, 134 S. E. 576, 50 A. L. R. 1425; Eckel v. Richter, 191 Wis. 409, 211 N. W. 158. J. B. Poindexter and W. B. Pittman (also on the brief) for plaintiff. J. B. Lightfoot (also on the briefs) for defendant. We think the defendant’s exceptions relating to this phase of the case should not be sustained. The remaining exception raises the question as to whether the verdict was excessive. This exception likewise cannot be sustained. The evidence tended to show that the plaintiff suffered actual damages in the sum of $740. His injuries were of such a nature as to cause him a great deal of pain and suffering and kept him confined most of the time at his home for a period of three weeks. He testified at the trial that he was still suffering. Under these circumstances we cannot say that he recovered a larger amount than he was entitled to. The exceptions are overruled.