This action was for damages for wrongful death, as the result of a collision between an automobile of the Union Gas Electric Company, which was being driven by John E. Doran, and a wagon of the City Ice Fuel Company. The City Ice Fuel Company was dismissed from the case, and the jury returned a verdict for the defendant, the Union Gas Electric Company, upon which judgment was entered. To reverse this judgment, error is now prosecuted. *Page 315
Only one question of error is presented, which is that the court erred in refusing to give plaintiff's written charge to the jury before argument. The charge requested was as follows:
"The court charges you that, if you find that John E. Doran was combining both his own and the Union Gas Electric Company's business at the time of the collision, then the Union Gas Electric Company is liable to the plaintiff, provided, of course, that John E. Doran was guilty of negligence that directly caused the collision."
The rule of law is, as has been held in Chesrown v. Bevier,101 Ohio St. 282, paragraph 2 of the syllabus, 128 N.E. 94:
"Upon a written request to charge before argument, if the request correctly states the law and is pertinent to one or more of the issues of the case and the same subject has not been covered by other charges given before argument, it is error to refuse to give such charge before argument, even though the language of the charge is not the exact language the court would have selected."
See, also, Payne, Director General of Railroads, v. Vance,103 Ohio St. 59, 133 N.E. 85, and Cincinnati Traction Co. v.Kroger, 114 Ohio St. 303, 151 N.E. 127.
So that, as this was the only special charge offered on the subject, if correct and applicable to the facts, it should have been given, and failure to give it would be error.
The charge is, however, in our opinion, too broad, and would have been misleading to the jury. While it is true that a servant may, on the same trip, be combining both his own and his master's business, still, in order to render the master liable *Page 316 for his negligence, he must, at the time of the negligence complained of, be in the service of the master, attending to the master's business, and acting within the scope of his authority.
At the time of the accident or the negligence complained of, the servant, to bind the master for his acts, must be engaged on business for the master, within the scope of his authority. He is at that time either serving the master, or on business of his own.
In the instant case it would be especially misleading, because the evidence was that the automobile in question was owned by the defendant company, which supplied the gas, oil, and repairs therefor; that Doran used the machine in and about his work, and to and from his home, keeping it in his own garage at night, and, if occasion arose, as it did four or five times each year, when he was needed to assist during some emergency in directing repair work, he used the machine to go to the scene of trouble, and it was his custom generally to leave word with the department where he could be reached if needed. The evidence further shows that on the night in question he had used the machine to go to a boxing contest in Ft. Thomas, Ky., that he came to the company's station, and obtained oil and gas, leaving word that he was going home. He then, with a companion, drove to Metz's garden, remaining at least an hour, then to College Hill, but he did not stop at his home, and was proceeding to take his companion to a hotel in Cincinnati, about 3 a.m., when the accident occurred.
The question before the court was whether or not Doran was engaged in the employer's business, *Page 317 or engaged in his own, at the time of the negligence complained of, when deceased received the injuries which resulted in his death.
To have given the special charge requested without further explanation or modification would have been misleading and improper, and we find no error prejudicial to the plaintiff in error.
The judgment of the court of common pleas will be affirmed.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur.