Bodle v. Wenner

*505 Burr, J. Those appeals involve an automobile collision in which the three plaintiffs were injured. Each commenced an action against the same defendants, and for convenience the actions were tried together. No service was obtained on the defendant Gross. During the trial the actions against Jean Wenner were dismissed.. The jury found against the defendants Paul Wenner and the International Harvester Company. Appropriate motions for judgments notwithstanding the verdict or for new trials were made and overruled. Judgment was entered against Wenner and the International Harvester Company and the company appeals. The pleadings raise the questions of negligence of the defendant Wenner, imputable to the defendant company, and of contributory negligence. These issues were resolved against the defendants. Reduced to the last analysis, the issue is one of fact — the responsibility of the defendant company. The record shows C. H. Gross was field collector for a certain portion of the Aberdeen, South Dakota branch of the Harvester Company. This branch had territory in North Dakota bounded on the north and northeast by a line from Milnor to Adrian, west from there to Streeter and the Missouri river, and south into South Dakota. The territory did not include the portion of North Dakota north of these lines and, therefore, did not include Millarton and Jamestown, which were in the territory of the Fargo branch. The territory assigned to Gross was the “territory of Adrian, Dickey, LaMoure, Fullerton, N. D. and territory tributary to those towns.” His duties were to call on farmers and dealers within his territory and make collections within the district definitely assigned to him; but he had no authority to transact any business outside of that territory. He was required to furnish his own car and received mileage when using it in the service of the company. The defendant Paul Wenner was an implement and garage dealer in Dickey. In September, 1933 Gross called on him to collect a check given to defendant company and not paid for want of funds. Wenner was unable to make the check good unless he could collect from his *506 debtors, and on the morning of the 28th he and Gross left in Gross’s car to call on some of them. They made three or four calls south of Dickey. Wenner succeeded in getting a check for $36.00 from one of his debtors and another for $29.00 from another debtor. The record is silent as to the bank or banks on which these two checks were drawn. There is nothing to indicate they were drawn on any bank in Jamestown — the inference is against this — and they were not cashed in Jamestown. Wenner gave Gross the $29.00 check to apply on the debt to the company, but kept the $36.00 check at that time. They drove back to Dickey and then went out again in Wenner’s car to try to collect from Wenner’s debtors. The defendant company had no interest in any of these debts. On this second trip no work was done by Gross for the International Harvester Company. Both Wenner and Gross say Gross was trying to help Wenner collect on his debts. There was a commemorative celebration in Jamestown that day. After dinner Wenner told Gross that if he would go into Jamestown with him to celebrate he would turn over the $36.00 check to apply upon the account, but otherwise he would not. Wenner may have wanted also to get some “parts” in Jamestown, and it may be he hoped to meet a debtor there. Gross told him he did not want to go to the celebration, that he would rather stay in his own territory and work it. However, in order to get this $36.00 check he decided to go to Jamestown with him. They remained in Jamestown until about dusk. Neither transacted any business in Jamestown, and the company had no business there for Gross to transact. Hp to this time Wenner drove his own car. Gross says Wenner got drunk while there, and in order to get him out of Jamestown he took the keys of the car away from him. Both got into the car and drove south from Jamestown on their way back to Dickey, purposing possibly to make a call at Sydney. Gross had been drinking also. The only relationship between Wenner and the company was that of debtor and creditor. The company did not own the car nor hire it. Neither did it have any interest in Gross’s car, and there is nothing to indicate or suggest that the company knew of this trip to Jamestown, authorized it, or at any time authorized Gross to use any car but his own. Though Gross drove *507 on the return trip, he was a mere guest of Wenner and was driving it for Wenner. It was at this time the accident took place, some twelve miles south of Jamestown and outside of the territory assigned to Gross. It is true that in general the relation of master and servant existed between the company and Gross on the day of the accident. Where one has the right to prescribe the direction, means, and method of the work and controls and directs another in the discharge of his duties, one whom he may discharge at will, the relation of master and servant exists. Minneapolis Iron Store Co. v. Branum, 36 N. D. 355, 162 N. W. 543, L.R.A.1917E, 298; Cook v. Sanger, 110 Cal. App. 90, 293 P. 794. But this is only while the employee is attempting to carry out his contract. He is not a slave. Where one causing injury is such an employee, the mere fact the employer did not furnish the car does not in itself relieve the employer from liability. Ryan v. Farrell, 208 Cal. 200, 280 P. 945; Altoonian v. Muldonian, 277 Mass. 53, 177 N. E. 830. But to make the employer liable it is as necessary that the employee be acting for the master in the master’s business at the time of the accident as that he be an employee. McCraner v. Nunn, 129 Kan. 802, 284 P. 603; Zarn v. Dominique, 39 Ohio App. 442, 177 N. E. 850. As said in Lima R. Co. v. Little, 67 Ohio St. 91, 65 N. E. 861: “The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service of and while acting for the master in the prosecution of the master’s business. “A master is not liable for .the negligent act of a servant or employee if, at the time of the doing of such act, the servant or employee is not then engaged in the service or duties of his employment, although the act be one which, if done by such servant or employee while on duty and at a time when actually engaged in his master’s service, would be clearly within the course and scope of the usual and ordinary duties of such servant or employee.” That one is an employee in general does not say that he is always acting as an employee until discharged. The relationship of employer and employee must exist at the time of the accident, in the work for *508 which, the car was being driven. Even though he is an employee, in the sense that his employment has not been terminated, nevertheless his acts do not bind the employer unless they are within the real or apparent scope of his authority. As said in Erickson v. Foley, 65 N. D. 737, 262 N. W. 177, 179, any recovery against this appellant is based upon the doctrine of respondeat superior. “Where there is no conflict in the evidence or the presumptions that may reasonably be drawn therefrom, the scope of authority of one driving an automobile belonging to another is a question of law for the court.” We had occasion in the case of Ignatowitch v. McLaughlin, ante, 132, 262 N. W. 353, 361, to define the conditions under which the employer is liable for an injury caused by the negligence of a salesman while driving his own automobile, and we show there that the servant “must, at the time, have been acting within the scope of his employment in performing an act for his employer’s benefit. It must also appear that the automobile was used in the employer’s business with his knowledge and assent, and under his direction and control.” In this case cited the defendant was an independent contractor rather than an employee; but the rule is the same. In the case at bar the employee was not on his employer’s business, did not use his employer’s car or any car authorized'by his employer, and was not even on Wenner’s business when the accident took place. They had attended a celebration; they were on their way back to Wenner’s home where Gross’s car was left. There is no evidence whatever tending to show the employer had any knowledge of the use of Wenner’s car. The record shows a specific written contract with Gross to use his own car. In Grissim v. A. C. Blumenthal & Co. 76 Gal. App. 712, 245 P. 768, we have a case where the employee went from his place of employment on a holiday to get his automobile and other property, without being directed to transact and without transacting any business there. It was held that he was “not performing duties within his employment, so as to make his employer liable to a person injured by him during his return.” In his memorandum opinion the trial court cites the case of Kohlman v. Hyland, 54 N. D. 710, 210 N. W. 643, 50 A.L.R. 1437. In that case the employee was engaged in the employer’s business generally. *509 He was driving the employer’s car on a trip directed by the employer, following in general the route laid out for him. The only question involved was whether there was such deviation as to temporarily interrupt the relationship of master and servant. Whatever may have been the deviation, there was no question but what the employee was actually on his way back to the route laid out to carry out the business for which he was employed. There is no similarity between the cases, and the rule laid down therein does not apply to the case at bar. Appellant’s motions for judgments notwithstanding the verdict should have been granted. The judgments against the company are reversed and the actions dismissed. Burke, Ch. J. and Nuessle, Morris and Christianson, JJ., concur.