Eckel v. Richter

Rosenberry, J. The defendant contends, first, that the plaintiff was guilty of contributory negligence as a matter [412] of law. Without reciting the evidence at length, it is sufficient to say that there was a clear conflict in the evidence. If the jury had believed the evidence which was offered to sustain the defendant’s claims, they might well have found for the defendant. On the other hand, if they believed the evidence offered to sustain the claim of the plaintiff, there was ample evidence to sustain that finding. Under such circumstances the court cannot say as a matter of law that the plaintiff was guilty of contributory negligence. The second contention made by the defendant is that the employee, Ohlson, was at the time of the accident using the automobile for purposes of his own and was at the time of the accident not acting within the scope of his employment. The master is no doubt liable for all acts of his servant while engaged in his master’s business within the scope of the servant’s authority, but if the servant steps aside and proceeds to serve some purpose of his own, the master is not liable. Firemen’s Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507. The departure of the servant from the scope of his employment may as measured in terms of time or space be very slight, nevertheless if the act performed be one in furtherance of his own purposes and without the scope of his employment the master is not liable. Seidl v. Knop, 174 Wis. 397, 182 N. W. 980. Under the findings of the jury and upon the undisputed evidence it appears in this case that the driver, Ohlson, took the automobile for a double purpose: (a) for a purpose of his own, that is, to go to his home for the purpose of procuring his noon meal; (b) for the purpose of delivering a package of meat purchased by the Ohlson family from the defendant in the regular course of business, which it was his duty to deliver. Under the facts of this case it cannot be said that the delivery of the meat was a mere incident [413] and that the dominant or principal purpose was the procuring of the employee’s meal. From all that appears in the case, had Ohlson not gone to his home for his noon meal he would have been compelled to make the trip to deliver the meat. Such at least is a fair inference and it is confirmed by the finding of the jury. It appears from the evidence of disinterested witnesses that the route which the driver, Ohlson, took on his return was the usual, ordinary, and customary route, although not the shortest one, from the Ohlson residence to Richter’s place of business. While he had formed the intention at his home and had called for his chum for the purpose of cárrying out his intention to go swimming, while on the usual, customary, and ordinary route to his employer’s, place of business he abandoned that purpose and determined to proceed to the defendant’s place of business in order to resume his employment which he was under obligation to do at 1: 30 o’clock, and at the same time to return the automobile. Being engaged in the use of the defendant’s automobile for a double purpose and having done or performed no act inconsistent with the prosecution .of his employer’s business, which was one of the purposes for which the automobile was taken, he was at the time of the accident acting within the scope of his employment and in furtherance of the master’s business. We do not attach great importance to the fact that the driver, Ohlson, did not proceed to return by the shortest route. In the absence of specific directions from the employer, the choice of route is open to the employee, and if he pursues an ordinary, customary, and usual route that does not amount to a departure from his employment even though it is not the shortest possible route. Thomas v. Lockwood Oil Co. 174 Wis. 486, 182 N. W. 841. By the Court. — Judgment affirmed.