Riley v. . Standard Oil Co.

Andrews, J. Driving directly towards his master’s mill; his master’s truck loaded with his master’s goods for which his master had sent him; his only purpose to deliver them as his master had commanded; with no independent object of his own in, mind; -Million, a chauffeur employed by the defendant, ran over the plaintiff, negligently, as the jury have said with some evidence to support their finding. Therefore, the complaint should not have deen dismissed unless we can say as a matter of law that at the moment of the accident this chauffeur was not engaged in the defendant’s business. We reach no such conclusion. There could be no debate on this subject were not the essential facts obscured or modified by other eircum *304 stances. It appears, however, that the chauffeur had been ordered to go from the mill -to the freight yards of the Long Island railroad, about two and one-half miles away, obtain there some barrels of paint and return at once. After the truck was loaded, Million discovered some waste pieces of wood. He threw them on the truck and on leaving the yards turned, not towards the mill, but in the opposite direction. Four' blocks away was the house of a sister, and there he left the wood. This errand served no purpose of the defendant nor did the defendant have knowledge of or consent to the act of the chauffeur. Million then started to return to the mill. His course would lead him back past the entrance to the yards. Before he reached this entrance and when he had gone but a short distance from his sister’s house, the accident occurred. A master is liable for the result of a servant’s negligence when the servant is acting in his business; when he still is engaged in the course of his employment. It is not the rule itself but its application that ever causes a doubt. The servant may be acting for himself. He may be engaged in an independent errand of his own. (Reilly v. Connable, 214 N. Y. 586.) He may abandon his master’s service permanently or temporarily. While still doing his master’s work he may be also serving a purpose of his own. (Quinn v. Power, 87 N. Y. 535.) He may be performing his master’s work but in a forbidden manner, (Cosgrove v. Ogden, 49 N. Y. 255.) Many other conditions may arise. No formula can be stated that will enable us to solve the problem whether at a particular moment a particular servant is engaged in his master’s business. We recognize that the precise facts before the court will vary the result. We realize that differences of degree may produce unlike effects. But whatever the facts, the answer. depends upon a consideration of what the servant was doing, and why, when, where and how he was doing it. *305 A servant may be “ going on a frolic of his own, without being at alb on his master’s business.” He may be so distant from the proper scene of his labor, or he may have left his work for such a length of time as to evidence a relinquishment of his employment. Or the circumstances may have a more doubtful meaning. That the servant is where he would not be had he obeyed his master’s orders in itself is immaterial except as it may tend to show a permanent or a temporary abandonment of his master’s service. Should there be such a temporary abandonment the master again becomes liable for the servant’s acts when the latter once more begins to act in his business. Such a re-entry is not effected merely by the mental attitude of the servant. There must be that attitude coupled with a reasonable connection in time and space with the work in which he should be engaged. No hard and fast rule on the subjéct 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. He may choose a different way back. Doubtless this circumstance may be considered in connection with the other facts involved. It is not controlling. We are not called upon to decide whether the defendant might not have been responsible had this accident occurred while Million was on his way to his sister’s house. That would depend on whether this trip is to be regarded as a new and independent journey on his own business, distinct from that of his master (Story v. Ashton, L. R. 4 Q. B. 476; McCarthy v. Timmins, 178 Mass. 378) or as a mere deviation from the general route from the mill and back. Considering the short distance and the little . time involved, considering that the truck when it left *306 the yards was loaded with the defendant’s goods for delivery to its mill and that it was the general purpose of Million to return there it is quite possible a question of - fact would be presented to be decided by a jury. At least, however, with the wood delivered, with the journey back to the mill begun, at some point in the route Million again engaged in the defendant’s business'. That point, in view of all the circumstances, we think he had reached. (Jones v. Weigand, 134 App. Div. 644.) The judgment of the Appellate Division must be modified in so far as it directs the dismissal of the complaint and in so far as it fails to direct a new trial and as so modified affirmed, with costs to abide the event.