Susser v. Delovage

*357 MR. JUSTICE STARK delivered the opinion of the court. After stating that the plaintiff is a minor, and that Jack Susser had been duly appointed her guardian ad litem, the complaint in this action alleges in paragraph 3: ‘ ‘ That on and prior to the thirtieth day of August, 1921, the said defendants Delovage were the owners of, in control of, and in possession of, a certain Cadillac automobile, which automobile was at all times so owned, controlled, and possessed by the said defendants Delovage for their own and their families’ use; that on the said thirtieth day of August, 1921, and at all times on said date, the said William Gleason was in the service of the said defendants Delovage, in and about the operation and driving of said automobile for the said defendants Delovage, and at all times on said thirtieth day of August, 1921, the said William Gleason *358 was, with the knowledge, consent, and understanding of the defendants Delovage, and as their said servant and agent, driving and operating said automobile.” It is then charged that on said August 30, 1921, while the plaintiff was riding along one of the streets of the city of Butte in a Ford automobile, driven by her father, the defendant Gleason, driving said Cadillac automobile, carelessly and negligently ran the same into the Ford automobile, as a result of which the plaintiff was thrown to the pavement and suffered injuries and damage. The defendant Gleason filed an answer in which he denied the allegations of paragraph 3 above quoted, and likewise denied all the charges of negligence made against him in the complaint. The defendants Delovage filed a separate answer, in which they admitted their ownership of the Cadillac automobile, but denied that Gleason was acting as either their agent or servant or under any authority from either of them at the time of the collision of the two automobiles, and alleged that Gleason was driving the Cadillac automobile without their knowledge, authority, or consent, but that he was so driving the same solely and only as a trespasser, and without any right or authority so to do from any person or .persons whomsoever. The case was tried before a jury. At the close of all of the testimony the defendants Delovage made a motion for a directed verdict, which was denied. The jury returned a verdict in favor of the plaintiff and against all the defendants, upon which a judgment was duly rendered and entered. The defendants Delovage made a motion for a new trial, which was overruled, and they have appealed from the judgment. Defendant Gleason did not move for a new trial, and has not appealed. The respondent has made a motion to dismiss the appeal. This motion has been considered and found to be without merit, and is overruled. *359 In their brief filed in this court appellants concede that defendant Gleason in driving the automobile at the time of the collision was negligent, as alleged in the complaint. “It is well settled that, even though the driver of a car is a servant of the owner of the car, the owner is not liable, unless, at the time of the accident, the driver was acting within the scope of his authority and in regard to his master’s business.” (Stumpf v. Montgomery, 101 Okl. 257, 32 A. L. R. 1490, 226 Pac. 65.) In order to sustain the allegation of the complaint that Gleason was acting as the agent or servant of the appellants at the time of the collision, the plaintiff introduced testimony of Otto Binder, who said that at about 6:30 o’clock in the evening of the accident he overheard a conversation between the appellant Abe Delovage and the defendant Gleason, concerning which he testified: “I heard Abe Delovage tell Gleason to take the Cadillac car to Dr. McCarthy for a demonstration; after the demonstration take the car to the Broadway Garage.” And also the testimony of the guardian ad litem, Jack Susser, who testified that on the twentieth day of February, 1924, he had a conversation with the defendant Abe Delovage in the corridor of the courthouse at Butte, in which the following occurred: “I asked Abe Delovage the question why was Gleason driving his car that night, and Abe said: ‘I told Gleason to take my car to Dr. McCarthy’s home, demonstrate it, and then take her back to the garage. When he was taking it back to the garage is when he hit you.’ ” Accepting the statements of Susser and Binder as being true, they merely show that Gleason was made the agent of the appellants for a particular act or transaction; namely, to take the automobile to Dr. McCarthy’s for a demonstration and then take it to the Broadway Garage. This constituted him a special agent. (Sec. 7930, Rev. Codes 1921.) He was not in the general employment of the appellants, and his connection with their business, if any, was only to the extent indicated by the above statements. *360 There are three assignments of error, bnt in our view it is only necessary to consider one of them, namely, whether the court erred in denying appellants’ motion for a directed verdict, and this raises the question of the sufficiency of the evidence to sustain the verdict and judgment against the appellants. The basis of appellants’ motion for a directed verdict was that the evidence wholly failed to show that at the time of the occurrence of the accident made the basis of the suit the defendant Gleason was driving the automobile of the appellants in furtherance of any business of them or either of them. There was a sharp conflict in the evidence as to the manner in which defendant Gleason came into possession of appellants’ automobile on the evening of the accident, but, accepting the plaintiff’s version as being correct, it placed him in its possession, at about 6:30 P. M., starting to drive west on Park Street, but it did not show where he went or what he was doing from that time until about 9 o’clock P. M., or two and one-half hours later. The law would not indulge in the presumption that during that period of time he was furthering the business of the appellants. This fact would have to be established by evidence. Even though Gleason were following the instructions alleged to have been given to him by the appellant Abe Delovage during the first hour of this period, and was then in fact demonstrating the automobile to Dr. McCarthy, when he had concluded his task in that connection it was his duty forthwith to deliver the possession of the automobile to the appellants by returning it to the Broadway Garage, where, according to the evidence, they kept it. That was his final duty to appellants. This duty he did not perform. On the contrary, the undisputed evidence introduced on the part of the appellants showed that at 7:30 or 7AO o’clock P. M. Gleason was in the automobile driving to Three Mile, making a round trip of six miles for his own purposes; that returning from Three Mile, soon after 8 *361 o’clock, lie had the automobile at 444 West Broadway, where he took in two friends, and at about 8:10 or 8:15 o ’clock started for Nissler, distant five and one-half miles, making a round trip of eleven miles which trip was likewise for his own purposes, and not in any way connected with the business of the appellants; that he returned from this trip to 444 West Broadway shortly before 9 o ’clock, from which point he proceeded to take the automobile back to the garage, and had driven east to a point distant about one city block from it when the collision occurred. Keeping in mind the fact that Gleason was not in the general employment of the appellants, but was only their agent or servant for a particular act or transaction, when he took the automobile on his joy ride to Three Miles and Nissler, a trip of more than seventeen miles, he wholly abandoned the business of appellants, the relation of master and servant ceased to exist between them, and the doctrine of respondeat supenor had no further application. From the time Gleason started on his trip to Three Miles his possession of the car was wrongful, as much so as though he had in fact returned it to appellants at the Broadway Garage and then taken it out again without their knowledge or consent. This case does not present the situation of a mere disobedience of the master’s instruction, or one where there has been a slight deviation from the master’s business for the personal purposes of the servant, and the rules governing such situations have no application here. It is true Gleason testified that, when the collision occurred, he was returning the automobile to the Broadway Garage, and on this statement counsel for respondent predicate their argument that he was then engaged in the business of the appellants. But this is not the fact. At least an hour before starting to return the automobile to the garage he had wholly abandoned the appellants’ business for purposes of his own, and during that time was wrongfully in its possession. His pos *362 session during that time was not that of a servant of appellants, but as a wrongdoer. He had no more right to its possession during that time than as though he had originally stolen it. In the case of Cannon v. Goodyear Tire & Rubber Co., 60 Utah, 346, 208 Pac. 519, the facts were that the driver of defendant’s auto truck, on a Saturday, in the performance of his regular services, delivered a package at a railway station at 1:30 P. M., after which it became his duty to immediately return the truck to defendant’s garage, and from then until the following Monday morning his time was his own. After delivering the package, instead of returning the truck to the garage, as was his duty, he drove to his own home some distance away, used the truck for his own purposes during the balance of the afternoon, and at about 6 P. M. started to return the truck to the defendant’s garage, going by way of the station where he had delivered the package. After passing the station he negligently collided with an automobile, and it was held that the defendant owner of the truck was not liable for this negligent act, because at the time of the collision the driver’s possession of the truck was wrongful, and he was not engaged in the discharge of any duty to the defendant in returning the truck to the garage, but was only discharging the duty imposed upon him by law to restore to the owner property which had been unlawfully withheld. The theory adopted in that case is applicable to the facts in this case. Gleason having the automobile wrongfully in his possession, it was his legal duty to restore it to the appellants, .and it was in the discharge of such duty, not as appellants’ servant or agent, that he was driving the automobile back to the garage when the collision occurred. Since the evidence wholly failed to sustain the plaintiff’s contention that at the time of the collision the defendant Gleason was engaged in the performance of any business for the appellants as their servant, agent or employee their motion for a directed verdict should have been sustained. *363 Rehearing denied June 10, 1925. Upon the undisputed facts disclosed in the evidence the plaintiff is not entitled to recover anything from the appellants, for which reason a new trial of the action is not necessary. The judgment is reversed as to the appellants and the cause remanded to the district court, with direction to dismiss the complaint as to them. Reversed. Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews .concur.