Thomas v. Lockwood Oil Co.

182 N.W. 841, 174 Wis. 486, 1921 Wisc. LEXIS 135

• Court: Wisconsin Supreme Court
• Decided: July 13, 1921
• Status: Published

Opinion

The following opinion was filed May 3, 1921:

Eschweiler, J.

Although error was committed in receiving, on defendant’s offer, portions of the deposition of Finch taken at plaintiff’s instance under sec. 4096, Stats., as we shall discuss later, nevertheless a consideration of his entire evidence satisfies us that it did not warrant the action of the court below.

To relieve a master from liability to third persons arising from a negligent act of the employee on such a ground as contended for by defendant here, the deviation from the master’s service must be so substantial as to amount to a departure therefrom and for purposes entirely personal to the servant. Loomis v. Hollister, 75 Conn. 718, 55 Atl. 561.

Under Finch’s testimony, in proceeding from the place of his last delivery, the junk shop, to defendant’s garage, to go along on Center street was the shortest way he knew. Even were Washington avenue the nearer route it was subject to street-car traffic. He had had no express instructions as to the particular streets to travel. In going as he did down Center street, therefore, he was in the exercise of a discretion which must, in the absence of express directions, naturally rest with a driver of such a vehicle, and while in the exercise of such discretion he is manifestly, so far as that feature of it is concerned, still within his master’s service. Mathewson v. Edison E. I. Co. 232 Mass. 576, 581, 122 N. E. 743; McKeever v. Ratcliffe, 218 Mass. 17, , 105 N. E. 552; Hayes v. Wilkins, 194 Mass. 223, 80 N. E. 449; Maloy v. Rosenbaum, 260 Pa. St. 466, 103 Atl. 882.

The fact that Finch had the purpose of delaying his return to the place of employment in order to avoid being sent out on another errand,' a point upon which much stress is laid by defendant, certainly cannot of itself be such a departure from the master’s service as to thereby relieve the master. The servant who loiters and thereby fails to render to the master full and honest measure is nevertheless, so far as least as third persons are concerned, as much in the master’s employ as he who hastens in his task.

Again it is urged that Finch having, as expressed in certain parts of his deposition, immediately on leaving the junk yard formed the intention to make the detour on Franklin street in order to see the girl who lived there, his trip all the way down, or at least at the time of the collision, became a purely personal adventure and therefore a departure from the master’s service. The slight deviation required to go around the three sides of the square between Tenth, Eleventh, Center, and Franklin streets, in view of the length of his journey and the nature of his employment, does not warrant the finding that such was a substantial deviation and therefore a departure from the master’s service. Had the young lady resided on Center street between Tenth and Eleventh instead of on Franklin street and the driver had the same intention of driving past her house with the hope of seeing her, and with that intention in mind had been driving down Center street at the time of the accident, such mere purpose surely could not have made his being on Center street at the time in question a departure from his employment. The few moments required to run around on to Franklin street had no more substantial effect on his journey than if he had looked for her on Center street.

In any event, at the time of the injury he was back on Center street and headed in the proper direction towards his master’s place of employment. He was then in the master’s employ. Graham v. Henderson, 254 Pa. St. 137, 98 Atl. 870. That he then had an unexecuted purpose of again running around on Franklin street to again try to see the girl was a purpose which he might have abandoned before reaching the point of turning, and being merely an un-executed, unexpressed mental purpose of his own cannot be deemed a departure from his master’s service. Fitzgerald v. Boston & N. St. R. Co. 214 Mass. 435, 439, 101 N. E. 1085. As was said under a state of facts which warranted a similar conclusion to that arrived at here in Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29, where the deviation is slight and not unusual the court may, as a matter of law, determine that the servant was still executing the master’s business; and we say so here.

We have considered the authorities relied upon by defendant’s counsel (McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038; Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229; Crady v. Greer, 183 Ky. 675, 210 S. W. 167) and others, but we do not deem them as applicable or controlling upon the facts as they appear in this case.

Respondent asserts that the judgment should be supported upon the other grounds presented by it on its motion for a directed verdict, viz. the contributory negligence of the deceased; and that in any event no liability of defendant for the injury arose because Larson, not Finch, was driving. The trial court expressly refused to uphold defendant’s contention on such grounds, and we think very properly.

The question of contributory negligence by the bo3^ who was killed was a question for the jury.

The driver, Finch, had received no instructions as to permitting or not permitting any one else than himself to drive the truck. Fie testified that Larson, who had charge of the operation of the truck at the time of the injury to the boy, was driving in a proper manner and that there was nothing that could have been done by either Larson or himself to have avoided the injury.

At the time that Larson had requested and obtained permission to drive the automobile Finch had the purpose of going back on the body of the truck to ascertain if possible what was the trouble with the operation of the truck and also to shift the position of the barrel of oil so that it would be more convenient for removal upon returning to the garage, thereby permitting his more speedy relief from his employment. All of this was within the field of his employment, and Larson was a means used by Finch in carrying it out.

We think, therefore, that for the purposes of this case as the record discloses the situation, Larson, though in a measure a volunteer without expectation of compensation, nevertheless so far as any third person would be concerned was in defendant’s employment at the time of the injury. He was fully as much a fellow-servant of Finch and an employee of defendant as was the boy injured by the falling of the heavy machinery on the depot platform in Wagner v. Plano M. Co. 110 Wis. 48, 85 N. W. 643, or, the bystander assisting in laying of water pipes in Johnson v. Ashland W. Co. 71 Wis. 553, 556, 37 N. W. 823. These two cases were expressly recognized as correctly stating the law on such a point in Johnson v. Berwind F. Co. 154 Wis. 1, 3, 141 N. W. 1018. A similar result was arrived at in the case of Geiss v. Twin City T. Co. 120 Minn. 368, 139 N. W. 611, appearing with note in 45 L. R. A. n. s. 382. See, also, Prince v. Taylor (Tex.) 171 S. W. 826.

The respondent relies upon the case of Thyssen v. Davenport I. & C. S. Co. 134 Iowa, 749, 112 N. W. 177, 13 L. R. A. n. s. 572, but that case held that the act complained of there was not actionable negligence, which necessarily disposed of the case and made unnecessary any determination on such a question as is here presented.

Appellant plaintiff alleges in his assignment of errors certain rulings of the trial court in the matter of evidence. He offered to prove certain statements alleged to have been made by Finch at the police station after he had accompanied the policeman from the scene of the injury to the station. These statements could certainly not be considered as part of the res gestee and admissible on that ground, nor had any proper foundation been laid for introducing them by first interrogating the witness Finch, either on his examination under sec. 4096, Stats., or by calling him as an adverse witness upon the trial. The ruling was correct.

A map of Racine upon which it was claimed the witness Finch had marked with lead-pencil on his examination the streets traversed by him was admitted. This ruling was immaterial in view of our. holding as to his deposition infra.

Plaintiff offered in evidence an affidavit made by Finch about a month after the accident and verified before plaintiff’s counsel. This was used by plaintiff’s counsel in the examination of Finch under sec. 4096, Stats., and several statements therein contained were read to the witness and he was interrogated concerning them. The affidavit itself, however, was not offered at the time of such examination. There was no foundation, therefore laid upon which such affidavit as a whole could be offered as independent evidence, as was attempted to be done by plaintiff, and the court was right in refusing its admission.

Plaintiff read to the jury certain portions of the deposition, taken on his behalf under sec. 4096, Stats., of the witness Finch, defendant’s employee, before trial. After plaintiff rested defendant offered as part of his case other portions of such deposition, some of which portions were elicited by the questions of plaintiff’s counsel and others in response to defendant’s counsel. Upon the portions so offered by defendant relating in substance to Finch’s intent and purpose in driving around on Franklin street and as to his loitering on the way back to defendant’s garage, the trial court predicated its ruling in defendant’s favor. Such evidence, therefore, was in substance and effect defensive matter.

There was no showing made that Finch was not present at the trial or could not be produced as a witness. It is not necessary, therefore, that we should rule whether such portions of the deposition as tended to prove the substance of defendant’s defense could be properly admitted even were it shown that Finch could not attend as a witness. It was, however, clearly inadmissible as the record then stood.

Prior to the enactment of ch. 246, Laws 1913, the plaintiff himself could not have used the deposition of Finch, defendant’s employee, were Finch attainable as a witness (Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077, decided in 1906) ; such rule not applying, however, as to parties or. the officers of corporations when parties. J. H. Clark Co. v. Rice, 127 Wis. 451, 466, 106 N. W. 231.

By the chapter just mentioned there was added to sub. 2, sec. 4096, as it then stood the following:

“Such portions of any such examination or examinations of any of the persons mentioned as are relevant to the issues in the case may be offered by the party taking any such examination or examinations and shall be received upon the trial of the action or proceeding in which it is taken, notwithstanding the person who was so examined may be present at the trial or proceeding.”

This evidently was for the purpose of changing the rule as announced in Anderson v. Chicago B. Co., supra, but it goes no further.

Neither of the cases cited and relied upon by defendant, of Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 80 N. W. 467, or Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081, met the present proposition.

The scope and purpose of sec. 4096, Stats., is fully discussed in the case of Lange v. Heckel, 171 Wis. 59, 69, 175 , where it was held that a party who himself had been examined under sec. 4096, Stats., by the adverse party could not property offer such examination on his own behalf on the trial, there being no showing made that he could not be present to testify. The statute gives no express or implied authority for such use of the deposition as was made by defendant on the trial, nor can we find any support for its reception in any of the' decisions. The portions thereof upon which defendant predicated its defense were therefore improperly received.

By the Court. — Judgment reversed, and cause remanded for a new trial.

A motion for a rehearing was denied, with $25 costs, on July 13, 1921.