The plaintiffs, appellees, in these two appeals heard together on questions of law only, were subrogated to the rights of their respective assureds upon payment of the damages to a building and plate-glass window therein caused by the admittedly negligent operation of a 1952 Ford sedan automobile, belonging to the defendant company, by one Roger Boyd who, at the time of the accident, was an employee of the defendant company, being employed by it as a clerk.
The trial court without the intervention of a jury found for the plaintiffs, and the sole question in these appeals is whether there is substantial evidence in the record of the relation of agency or master and servant, within the scope of employment, imposing liability upon the defendant company under the doctrine of respondeat superior. Whether the employee was agent or servant, there is no fundamental distinction as to the imposition of tort liability.
The reports and texts are filled with examples of automobile cases such as this, and recent authorities are not in harmony on the question involved, although most agree that it does not permit of categorical answer, but depends upon the facts and circumstances of each particular case.
A distinguishing feature of this particular situation is that the sole witness producing all the testimony on this point was a vice-president and treasurer of defendant company, called by plaintiffs as their witness, who testified with complete candor that serves to somewhat distinguish these cases. *Page 228
Pertinent parts of the record are:
"Q. Now, directing your attention to the month of July of 1954, and particularly the date of July 13th, was your company the owner of a 1952 Ford sedan at that time? A. Yes.
"* * *
"Q. Now, on that date was there a Roger G. Boyd in your employ? A. There was.
"Q. What were his duties? A. I think he was a clerk in the office.
"* * *
"Q. Well now, how did he happen to be driving this automobile that belonged to your company? A. Well, the chap that ordinarily drove the car home at night was on vacation, and Boyd asked if he could drive the car. He said he had a driver's license and asked if he could use the car, so we let him.
"Q. Now, you say the chap who ordinarily drove the car home at night was on vacation; is that correct? A. That's right.
"Q. Was it your ordinary usage for some one of your employees to take that particular car home every evening? A. Ordinarily, yes.
"Q. What was the reason for that, Mr. Freeman? A. Well, we have quite a few company cars and rather than store them in garages, why, they take them home at night. One drives the car.
"Q. And he then stores the car for the night; is that correct? A. That's right; if he has storage room.
"Q. Now, do you have storage room at your company for all of your company automobiles? A. No, we don't.
"Q. How many automobiles does your company own? A. About 22, but not all of them here in Cincinnati.
"Q. Well, how many of them would be located in Cincinnati? A. Four or five.
"* * *
"Q. Now, when Mr. Boyd took his car home did you give him any instructions as to what to do with it? A. No. He just asked if he could take the car home and we told him yes.
"Q. Had he ever taken the car home before? A. I think he had taken it home the day before, Monday, if I recall. That was the first time, I believe, was Monday.
"* * * *Page 229
"Q. Would this other young man who ordinarily took the car home — well, what were his duties as an employee of your company? A. I believe he was the delivery boy, worked in the shipping office, and used it for light delivery work mostly.
"The Court: Used it for what?
"The Witness: Light delivery.
"Q. Was this particular car ordinarly used for making deliveries? A. Yes, for light deliveries; that's right.
"Q. In and around the vicinity of Cincinnati? A. Cincinnati; that's right.
"Q. When Mr. Boyd took the car home did he make any deliveries in it that evening? A. No.
"Q. Was he to make any deliveries with it the following morning? A. No.
"Q. What time was Mr. Boyd due at work? A. Eight-fifteen.
"Q. That's the normal hour that your employees report in? A. That's when the office starts.
"Q. What facilities do you have at your company for the storage of these company cars? A. Well, when we leave them at the office they usually park them on the street overnight.
"Q. There is no inside parking facility for these cars? A. No.
"Q. There is no lot for these cars; is that right? A. There is no what?
"Q. There is no lot? A. No.
"* * *
"Q. Well, if Mr. Boyd had not taken the car home where would it have been parked over the night of July 12th and 13th, 1954? A. Probably on Hulbert Street, right next to the building.
"Q. Did you ask Mr. Boyd if he had facilities for storing the car overnight when he took it home? A. I don't recall but I doubt if I did.
"Q. Was there any payment or remuneration given to the company by Mr. Boyd for the use of that automobile? A. No.
"Q. Who put the gasoline in the car? A. The company."
On cross-examination, the witness testified:
"Q. Mr. Freeman, you made a statement on examination *Page 230 before about permitting employees to take cars home at night because you would rather do that than put them in garages and pay for garage rent; is that correct? A. I didn't say that.
"Q. What did you say along those lines? A. I said if someone doesn't take it home they usually park it on Hulbert Street or in the neighborhood there.
"Q. I know you said that, but didn't you say prior to that, rather than garage the cars you let certain employees take them home? A. I don't believe I did. I don't recall saying that.
"* * *
"Q. Was it your ordinary usage for some one of your employees to take that particular car home every evening? A. Ordinarily, yes.
"Q. What was the reason for that, Mr. Freeman? A. Well, we have quite a few company cars and rather than store them in garages, why, they take them home at night. One drives the car.
"* * *
"Q. Now, did you talk with Mr. Boyd about this automobile before he took it home, sir? A. All I can recall is that he knew the regular driver of the car was on his vacation, and he asked me if he could drive the car home so he could use it. And I said yes."
In order to find liability on the part of the defendant company under the doctrine of respondeat superior, the trial court had to rely on the testimony as to the company practice of permitting employees to take company cars home at night in order to avoid the problem and expense, if any, of storage. The record shows that it was also a company practice to allow its cars to remain parked on a side street over night.
We are not required to decide a case involving an employee salesman regularly using a car, or one of the employees regularly taking a car home at night with the company approval in order to avoid a storage problem. It appears then from this record, so clearly that reasonable minds cannot differ, that Boyd asked whether he could drive the car and the primary reason was benefit to him, so that at that moment the legal relationship of bailment for the accommodation of Boyd was created. If any incidental benefit to the defendant company arose by reason of not having *Page 231 to store the car overnight, and the witness did not concede it would be any advantage, it was no part of the consideration of Boyd's employment and was of no consequence in making him an agent or enlarging the scope of his employment to include custody of company cars.
In 5A American Jurisprudence, 635, Section 640, it is stated:
"The mere fact that an employer derives incidental benefits from the use of his car by an employee does not impose liability upon him for his employee's negligence. In such cases only the primary purpose for the use of the car should control. Incidental benefit which the employer may derive by reason of the fact that the car bore the employer's name and would, in a measure, advertise his business, or that the chauffeur may have incidentally been testing the car, or that the employee intended, during the excursion for himself, to procure accessories for use in the automobile, does not render the employer liable for the employee's negligence while so serving his own purposes, though where an employee uses his employer's truck partly for his own pleasure and partly for his employer's benefit by soliciting business, he may be held to have been acting within the scope of his employment." See annotation, 122 A. L. R., 858, 878, 889.
The burden of proof resting upon a plaintiff was set forth inWhite Oak Coal Co. v. Rivoux, Admx., 88 Ohio St. 18,102 N.E. 302, 46 L.R.A. (N.S.), 1091, Ann. Cas. 1914C, 1082. The first and third paragraphs of the syllabus are as follows:
"1. The owner of an automobile is not liable in an action for damages for injuries to or death of a third person caused by the negligence of an employee in the operation of the automobile, unless it is proven that the employee, at the time, was engaged upon his employer's business and acting within the scope of his employment.
"* * *
"3. A bookkeeper or cashier, employed in the office of the company, is not presumed from that fact alone, to have the implied authority to use or operate an automobile purchased and owned by the company for the use and purpose of a traveling salesman."
Almost directly in point and dispostive of these cases is *Page 232 Senn, Admx., v. Lackner, 157 Ohio St. 206, 105 N.E.2d 49, holding in the first, second and third paragraphs of the syllabus:
"1. Under the doctrine of respondeat superior, the test of a principal's liability is not whether a given act was performed during the existence of the agent's employment, but whether such act was done by the agent while engaged in the service of and while acting for the principal, in the prosecution of the latter's business. (Paragraph two of the syllabus in the case ofLima Ry. Co. v. Little, 67 Ohio St. 91, approved and followed.)
"2. Under this doctrine it is the burden of the plaintiff to adduce evidence tending to show that the agent was acting within the scope of his employment and that the right to control the agent's conduct was in the defendant principal.
"3. This test is not met by showing merely that a half hour before an employee was to begin his day's work he was driving from his home to his place of employment in a car owned by his employer and loaned to the employee by the employer for the sole benefit of the employee until he could carry out his intention to purchase a car of his own." See, also, Rogers v.Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 677, 18 A. L. R. (2d), 1363.
Some of the witness' answers were:
"Well, the chap that ordinarily drove the car home at night was on vacation, and Boyd asked if he could drive the car. He said he had a driver's license and asked if he could use the car, so we let him." "All I can recall is that he knew the regular driver of the car was on his vacation, and he asked me if he could drive the car home so he could use it. And I said yes."
In the light of those answers, we conclude that the plaintiffs have failed to meet the burden of proof necessary to impose liability, under the doctrine of respondeat superior, on the defendant company. The judgments are reversed and final judgments rendered for the defendant company.
Judgments reversed.
MATTHEWS, J., concurs. *Page 233