This action was brought to recover damages for personal injuries. The plaintiff had a verdict for a substantial amount, upon which judgment was entered. An appeal was taken to the Appellate Division, where the same was unanimously reversed, and the complaint dismissed. The appeal to this court followed.
The defendant, on the 27th day of January, 1919, was and for some time prior thereto had been the owner of an auto truck which was operated by a chauffeur by the name of Million. Assuming that there was sufficient evidence to go to the jury on the question of Million's negligence, then the sole question presented is whether the defendant is responsible therefor. In determining this question there is substantially no dispute between the parties as to the material facts involved. On the day named Million was directed by the defendant to take the truck from its factory to a freight yard of the Long Island railroad, some two and a half miles distant, there take from a railroad car several barrels of paint, place the same upon the truck and return at once to the factory. He did as directed so far as loading the barrels *Page 307 of paint upon the truck was concerned, then having discovered some wood in the railroad car, placed that upon the truck, and drove it several blocks in an opposite direction from the factory to the residence of his sister. He there unloaded the wood, turned the truck around, and started back over the same route which he had previously passed, but before reaching the yard, ran over the plaintiff, inflicting upon him very serious injuries.
The case was sent to the jury with instructions that the wood having been delivered, and the truck being headed towards the yard where Million had to go in order to reach defendant's factory, "he had resumed his master's service" whatever may have been his relation to the master while he was on his way to deliver the wood.
The Appellate Division reversed the judgment and dismissed the complaint, upon the ground, as appears from the opinion delivered, that the uncontradicted facts showed, at the time the accident occurred, Million was not acting within the scope of his employment, or in furtherance of the master's business, but instead was on a personal errand which defendant had no knowledge of or interest in.
This court is about to reverse the Appellate Division upon the ground that Million having left his sister's residence, and started back towards the yard, had as matter of law reached a point in the route when he again engaged in the defendant's business. I am unable to see how this conclusion can be reached as matter of law. Nor do I think that the facts would justify a finding to this effect. The uncontradicted facts show, as it seems to me, that Million, at the place where and time when the accident occurred, was not acting for defendant. His act at and immediately prior to the accident was not a mere deviation from his duty or an irregular method of its performance. He was doing an independent act of his own and outside of the service for which he had *Page 308 been employed. When he started from the yard to deliver the wood to his sister's residence, he broke the connection between himself and his master, temporarily terminated the employment, and did not re-enter the same until he had again reached the yard. The return from his sister's residence to the yard was just as much a part of his personal errand as was going to her residence. I cannot believe that the liability of the defendant here is to be determined by the way in which the truck was headed. Rights of property do not rest upon such a slender thread.
The view above expressed that Million did not re-enter the defendant's service until he had returned to the yard after delivering the wood is sustained by authority.
In Reilly v. Connable (214 N.Y. 586) plaintiff was injured in a collision between an automobile owned by defendant and a bicycle on which plaintiff was riding. At the time of the collision the chauffeur, without the knowledge of the defendant, was using the automobile on a personal errand.
In Schoenherr v. Hartfield (172 App. Div. 294, 297) a chauffeur had taken from a garage, without the knowledge of his master, an automobile for the purpose of going a short distance on a personal mission. On his return for the purpose of putting the automobile back in the garage, the accident occurred, and it was held defendant was not liable; "that the return was as much a part of the errand, so far as the use of the car was concerned, as the going, for the use of the vehicle for the errand required its return to its place of keep." The court attached no importance to the fact that the accident occurred on the return trip. (See, also, Rayner v. Mitchell, L.R. 2 C.P. Div. 357, cited in Lord Halsbury's Laws of England, vol. 20, p. 253.)
In Hartnett v. Gryzmish (218 Mass. 258) plaintiff was injured by a collision between the automobile of defendant, driven by his chauffeur, and a bicycle on which plaintiff *Page 309 was riding. The chauffeur had taken the car from the garage to go to his house for dinner. He had eaten his dinner and was going from his house to the house of the defendant in order to take out defendant's mother, as he had been directed to do by the master, when the collision occurred. The plaintiff was nonsuited and judgment to this effect was affirmed by the Supreme Court, the court saying: "If the evidence of the chauffeur as to the purpose for which he was driving the car at the time of the accident is to be believed, then the plaintiff has failed to show that he was at that time acting within the scope of his employment, but has shown, rather, that he was acting for his own private purpose."
To the same effect is Danforth v. Fisher (75 N.H. 111). There the plaintiff was injured through a collision between his horse and defendant's automobile driven by his chauffeur. The chauffeur had been directed by the master to get his supper and be at a certain hotel with the automobile at a designated hour. He ate his supper and then, for the purpose of calling upon a friend, drove a mile or two distant from his boarding place. At the time of the accident he had finished his call and was on his way to keep the appointment at the hotel. Plaintiff was nonsuited and this was affirmed on appeal.
In Colwell v. Ætna Bottle Stopper Co. (33 R.I. 531) a chauffeur was ordered to take an automobile to the Bradford Street garage, wash and put it up for the night. He drove the car to the garage and instead of doing as directed took the car to carry another employee to his home, then drove to a restaurant where he had his supper, and was returning to the garage when the accident occurred. It was held that the servant was not acting within the scope of his employment and defendant was not liable for the injuries caused by the servant's negligence while thus acting. The court said: "He had no authority, either express or implied, to use the machine *Page 310 for the benefit of another employee, or for his own convenience in going to get his supper. His use of the automobile from the time he left the Bradford Street garage and during the whole circuit that he made from that point * * * back to the Bradford Street garage was unauthorized and beyond the scope of his employment. The case falls within a very distinct and important line of cases in this country, the principles of which are well set forth in Steffen v. McNaughton (142 Wis. 49)."
In Patterson v. Kates (152 Fed. Rep. 481) the defendant owned an automobile which broke down on the way from Atlantic City to Philadelphia, and which he then left in charge of his chauffeur with directions to repair it and bring it on to Philadelphia. After the driver had reached the Delaware river, and while waiting for the ferry, he consented to take a third person in the machine to a place about a mile back on the road. Hacing completed this journey, he turned about to go back to the ferry, and while on the way the accident occurred. It was held the chauffeur was not acting at the time of the accident within the scope of his employment and that defendant was not liable.
There are other decisions to the same effect, of which only a few need be cited: White Oak Coal Co. v. Rivoux (88 Ohio St. 18) ; Lotz v. Hanlon (217 Penn. St. 339); Doran v. Thomsen (76 N.J.L. 754); Maddox v. Brown (71 Me. 432); Fiske v.Enders (73 Conn. 338); Slater v. Advance Thresher Co. (97 Minn. 305); Sanderson v. Collins (1904, 1 King's Bench, 628).
My conclusion, therefore, is that under the facts of this case, upon reason and the authorities cited, the judgment appealed from is right and should be affirmed.
HOGAN, CARDOZO and CRANE, JJ., concur with ANDREWS, J.; HISCOCK, Ch. J., and CHASE, J., concur with MCLAUGHLIN, J.
Judgment accordingly. *Page 311