Lausche v. Denison-Harding Chevrolet Co.

243 N.W. 52, 185 Minn. 635, 1932 Minn. LEXIS 823

• Court: Supreme Court of Minnesota
• Decided: February 19, 1932
• Docket: No. 28,482.
• Status: Published

Opinions

¹ Reported in 243 N.W. 52. Action for personal injuries caused by an automobile collision. Plaintiff had a verdict against defendants Denison-Harding Chevrolet Company and Wilfred Aldrich, its employe. The other named defendant, Childs, was not served with the summons. The appeal is by Denison-Harding Chevrolet Company from the order denying its alternative motion for judgment or a new trial. It will be referred to hereafter as though it were the only defendant, its codefendant Aldrich not being party to the appeal.

The collision occurred soon after midnight on the morning of August 17, 1929, a few miles west of Cass Lake on the trunk highway between that village and Bemidji. The eastbound car, in which plaintiff was a passenger, was run into by one going in the opposite direction toward Bemidji. The latter was a Dodge coupe owned by defendant. At the time being it was in use by Aldrich, an auto salesman in defendant's employ. He was permitted by defendant to take any of the latter's used cars from its Bemidji garage for use in defendant's business or for his own purposes. No restrictions were put upon the times or manner of their use. Plaintiff seeks recovery from defendant on the doctrine of respondeat superior, asserting that there is evidence to justify the conclusion reached by the jury that at the time of the collision the Dodge coupe was in use by Aldrich within the scope of his employment.

1. In that we cannot agree. Aldrich had no stated hours of service. He worked when and as he pleased in his efforts to sell cars. On the evening in question he left Bemidji for Cass Lake about 7:15. We assume that at the outset he intended to call on a "prospect" at Cass Lake. But he was accompanied by a close friend by the name of Childs, and they took with them from Bemidji a potent supply of moonshine liquor in which both indulged freely en route to Cass Lake. All thought of business, the evidence makes it quite clear, was abandoned before Cass Lake was reached. When they got there no effort was made to see the prospective purchaser or to attempt anything other than the satisfaction of their own desires for a good time. At Cass Lake, reached about eight o'clock, they attended a street carnival. Aldrich continued drinking and became definitely intoxicated. He and Childs, with the Dodge coupe, left Cass Lake for a public dance at a near-by summer resort, where they arrived at about 10 or 10:30 p. m. There Aldrich became boisterous and altogether unruly. A friend, by name McLaughlin, loaded Aldrich into the coupe, where he promptly fell asleep. On the suggestion of McLaughlin, who was to follow in another car, Childs undertook to drive the coupe back to Bemidji and was at its wheel at the time of the collision. Aldrich continued in his drunken stupor.

The jury found, properly enough, that Childs was driving with the consent of Aldrich. But there is no evidence to sustain it's further conclusion that Aldrich was in the scope of him employment and on his master's business at the time. All we know about the destination of defendant's machine is that it was going to Bemidji. There is nothing to show whether it was bound for defendant's garage or some other place, there to be left until Aldrich had sobered sufficiently to go back to work. He was not obliged to return the car to defendant's garage each night but was privileged to keep it at his own home, and frequently did so. Thus disappears the only possible ground for plaintiff's claim that because he was returning defendant's car to its place of business Aldrich was within the scope of his employment. The case is thereby distinguished from Cummings v. Republic Truck Co. 241 Mass. 292, 135 N.E. 134, where the negligent employe, after his departure from his employer's business, was held to have returned thereto because at the time of the accident he was returning the car via the ordinary and proper route to his master's garage.

Ordinarily the question whether at a given time a servant is on his master's business is one of fact. But that does not relieve us from the duty, in this case an unpleasant one, of deciding in the negative the legal question of the sufficiency of the evidence to sustain the affirmative of the issue. We have had to do that in many cases, e. g. Moore v. P. J. Downes Co. 150 Minn. 333, 185 N.W. 395, and Malmquist v. Hellenic Community, 163 Minn. 10, 203 N.W. 420. For other cases see 4 Dunnell, Minn. Dig. (2 ed. Supp.) §§ 5840 and 5843. Even though Aldrich had a general and roving commission to seek customers for defendant (see Rudd v. Fox, 112 Minn. 477,128 N.W. 675) still is it plain as matter of law that he was beyond even the scope of that employment on the occasion here determinative. It would strain controlling law beyond the breaking point to hold that the debauch in which Aldrich was indulging and during which the accident here in question occurred could in any reasonable view be considered within the scope of his employment by defendant. It was plainly not at all his master's business but wholly his own ill-fated affair.

It is "generally well settled" that the owner is not liable for damages caused by the negligent operation of his automobile while being used by an employe for the latter's business or pleasure and not in the master's business, even though the owner has consented to such use. Anno. 22 A.L.R. 1400. That is the rule in this state. Mogle v. A. W. Scott Co. 144 Minn. 173, 174 N.W. 832; Menton v. L. Patterson Merc. Co. 145 Minn. 310, 176 N.W. 991.

No further discussion is needed to demonstrate the utter lack of foundation for the verdict against defendant. Of course the jury was not obliged to credit the testimony of Aldrich. But if we put it aside and with it all other testimony open to question on any ground, plaintiff will not be aided. Her case is thereby left void of evidence to sustain the burden of proof resting upon her.

A different result would be possible could we include automobiles in the category to which applies the doctrine of strict accountability known as the dangerous instrumentality rule. That view has not been adopted here (Provo v. Conrad,130 Minn. 412, 153 N.W. 753; Menton v. L. Patterson Merc. Co.145 Minn. 310, 176 N.W. 991); and the "decisions elsewhere are almost unanimously" against it. Anno. 16 A.L.R. 270. If injured persons in the unfortunate and deserving situation of this plaintiff, who has suffered painful and permanent injuries, are to recover from the owner of the offending automobile on the ground of ownership, and for no other reason, the law-making necessary for that result must come from the legislature rather than the courts.

The case was fully and well tried and has been exhaustively argued here. There is no reason for a new trial. Hence the order appealed from must be reversed with directions to enter judgment for defendant notwithstanding the verdict.

So ordered.