The employer is liable for the result of an employe's negligence while the employe is acting in his business — when he is engaged in the course of his employment. A simple rule. Its application should not be difficult.
"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." Riley v. Standard Oil Co. 231 N.Y. 301, 304,132 N.E. 97, 98, 22 A.L.R. 1382.
Aldrich testified that before he got out of the city of Bemidji he changed his mind, abandoned all business, and was thereafter on pleasure bent. The majority opinion holds that the record presents such inconsistent statements and conduct by Aldrich as to permit the jury to disbelieve his claim of abandoning his employers' business and in fact rejecting all his testimony unless corroborated. I rather concur in that. Yet his conduct conclusively shows that he did in fact abandon all business. It does not need his statements to establish that fact. The circumstances conclusively prove it. He never saw his prospect at Cass Lake. He never tried to see him. The prospect passed completely out of his mind. The opinion shows that the jury could find that Aldrich went to Cass Lake on his employer's business. If so, what business? No one can tell, unless it be said he was there to see the man that he did not look for. When the jury rejects his statement that he abandoned all business, *Page 646 there is nothing left. He did not do anything in Cass Lake for his employer. He was there in the early part of his spree. Why the jury can be permitted upon such a record to say that Aldrich was in Cass Lake on his employer's business is beyond my grasp of legal rules and principles. He devoted himself to drinking. He left Cass Lake and went to Sah-kah-tay, where he had no business. It is apparently conceded that he was outside the line of duty while there. That was a resort, and he presumably went there for amusement and entertainment. He devoted himself to what he apparently considered pleasure. He became drunk. He "passed out." Childs alone should be held responsible for this accident. If he is financially irresponsible that is no different from many other irresponsible people who are permitted to drive cars upon our highways without carrying insurance.
Had Aldrich at the place where he began drinking turned west and an accident had happened when he was going to Crookston for pleasure, defendant would not have been liable. To my mind non-liability in the instant case is just as clear.
The majority opinion puts liability upon the claim that if Aldrich departed from the line of duty he resumed that relationship when the car was headed homeward from Sah-kah-tay, especially after he got back on the same road he would have traveled had he traveled back to Bemidji from the city of Cass Lake. This claim rests upon the statement that it was the duty of Aldrich to return the car to his employer. Of course it was. Having permissibly used the car for his own personal affairs, he was required to return the car to the owner; but to put liability upon such a duty arising out of the personal use of the car seems mythical or a fiction when it becomes the basis for liability on the part of an employer arising out of the negligent operation of the car while it is being so returned. Indeed, property rights hang on a slender thread. The right to use the car on personal trips was expressly given. This right carried the implied personal duty always to return the car, and this duty required that the car be returned all the way home. It is the law that when there has been a temporary abandonment by the employe of the employer's work the employer again becomes liable *Page 647 for the employe's acts when the latter once more begins to act in the line of duty and in the scope of the employment. But in the instant case the employe was on the way home from a personal diversion, and the court holds that when he got back onto a highway which he would have traveled had he not gone on a personal diversion the relationship of master and servant was immediately resumed though the employe was then unfit for duty. It seems to me that this puts too much emphasis on the matter of road. It is also rather a forced statement to say that Aldrich was returning the car. He was so drunk that his friend McLaughlin caused Mr. Childs to drive the car — not to take it home to the employer but to take Aldrich home. In my judgment this was an errand personal to Aldrich and should not be classed as in the interests of the employer. The car did not have to be returned that night, and Aldrich was at liberty to keep and return the car the following day. The return of the car that night was purely an incident to the personal trip, as well as to getting Aldrich home. The return of the car was never mentioned to anyone. It was never thought of until someone began to look for a peg upon which to hang a verdict against the employer. The employer's garage was closed, and all that could be done with the car that night was to take it to Aldrich's home. There was no thought of doing more.
When there has been a temporary abandonment of the employer's service the employer again becomes liable for the employe's acts when the latter once more begins to act in his business. Riley v. Standard Oil Co. 231 N.Y. 301, 132 N.E. 97,22 A.L.R. 1382. It seems to me that the record shows that Aldrich was doing an independent act of his own and was as a matter of law outside the service for which he was employed. I think it should be said that he was solely on his personal escapade until he returned to his home in Bemidji, that is, until he reported for duty.
I suggest that the rules of the return of the car and of getting back on a road that would have been used in the absence of the diversion are not sound. Both are related to questions so important under modern conditions that they ought to be solved in a manner that will aid in the wholesome administration of justice. *Page 648