BAKER, C.J., and TAYLOR, J., dissenting. September 10, 1945. I respectfully dissent from the opinion of the CHIEF JUSTICE for I think the case was properly submitted to the jury and this Court should not undertake to decide it on the facts. And I do not think that the proposed decision to the contrary is required by the authority of the cited cases from this Court.
Knight v. Laurens Motor Car Co., 108 S.C. 179,93 S.E., 869, L.R.A., 1918-B, 151, involved facts quite different. There an employee of an automobile garage took a car out after business hours (he had the keys) and went on a pleasure ride solely on his own account. Likewise, Holder v.Haynes, 193 S.C. 176, 7 S.E.2d 833, 836, is distinguished by the facts. It also involved a pleasure trip of the servant undertaken on a Sunday and the question for decision, *Page 342 as stated by the Court, was, quoting from the opinion: "The primary * * * question is: If the evidence shows that at the time that plaintiff was injured the truck which inflicted the injury was being driven by Willie Johnson, an employee of John E. Haynes, without the knowledge, consent or permission of John E. Haynes, the owner thereof, not in the line of Johnson's duty as such employee and not in or about the business of his employer, but wholly about Johnson's personal affairs and pleasure, is the owner of the truck liable?" In order for this case to be parallel to either of those, Falconer would have had to have taken the truck exclusively for his own purposes and gone to York to fill his date, or solely on some other personal mission.
In contrast to the facts of the cited cases, the servant-tortfeasor here was sent out under the express direction of his master to deliver the cargo of gasoline at Rock Hill. It is reasonably inferable that he was sober when he started but drunk and still drinking when he attempted delivery of the gasoline, so he voluntarily embarked upon his spree when he was unquestionably on his master's business, and the disaster resulted from his drunken state. And I think it further reasonably inferable that he started from Rock Hill to Charlotte via York, but deviated from the most direct route to evade the police who were promptly summoned by the consignee of the shipment.
The case bears some similarity to Atlanta Laundries v.Goldberg, Ga. App., 30 S.E.2d 349. In that case the servant had the duty of delivering laundry in a truck to a certain address, which he did, and then went on a beer-drinking party, becoming intoxicated, but the accident happened when he appeared to be on his way back in the truck to his employer's premises, and verdict for plaintiff was sustained on appeal. The opinion of the Georgia Court of Appeals is an interesting and well-reasoned one. *Page 343
The fallacy of appellant's position is, I think, that it conceives that the moment a servant does any act in violation of his master's instructions or in failure of the proper performance of his duties, he deviates from the course of his employment and the master is not liable for his torts in the performance of such acts. But that is not the law. The tort, involving liability of the master, may be against the latter's express instructions. Suppose Falconer had assaulted Mr. Kaylor when delivering the gasoline and they had words about drinking and truck driving, is it to be doubted that the master would be liable in damages? I do not think so. See on this subject 35 Am. Jur., 993, and South Carolina cases in 23 S.E.D., 660, particularly Redding v.South Carolina R. Co., 3 S.C. 1, 16 Am. Rep., 681.
A valuable authority upon the point at issue is our recent decision of Adams v. South Carolina Power Co., 200 S.C. 438,21 S.E.2d 17, 18. There the agent of the defendant had admittedly deviated from the course of travel required by his business for the master, having gone on a political mission for his own personal purposes, but it was held that the case should have been submitted to the jury for their determination whether at the time of the automobile accident, the master was responsible for the tort. It was said in the leading opinion:
"The terms `course of employment' and `scope of authority,' are not susceptible of accurate definition. What acts are within the scope of employment can be determined by no fixed rule. The authority from the master is generally to be gathered from all the surrounding and attendant circumstances. In cases where the deviation is slight and not unusual the Court may, and often will, as matter of law, determine that the servant was still executing his master's business. So, too, where the deviation is very marked and unusual, as in Holder v. Haynes, 193 S.C. 176, *Page 344 7 S.E.2d 833, the Court in like manner may determine that the servant was not on the master's business at all, but on his own. Cases falling between these extremities will be regarded as involving merely a question of fact, to be left to the jury. 5 Am. Jur., Section 376, page 714.
* * * "It seems to me, under the facts shown here, that the Court should not undertake to make nice distinctions and fix with precision the line that separates the act of the servant from the act of the individual where it may be inferred from the evidence that the act in question occurred at a time when the servant was engaged in the performance or furtherance of matters coming within the general scope of his employment."
The citation from 5 Am. Jur., 714 is interesting, and the most of the pertinent section is reproduced below:
"While, as stated in the preceding section, the owner of an automobile is not liable for injuries or damages caused by the negligent operation of his automobile while it is being used by an employee for his own business or pleasure, the servant must have abandoned and turned aside completely from the master's business, to engage in some purpose wholly his own, before the master ceases to be liable for his act; it is not every deviation from the direct line of his duties on the part of an employee that constitutes a turning aside from, and an abandonment of, his master's business. A slight deviation by the servant in charge of a motor vehicle, for his own purposes, when he is on business for his master, does not affect the liability of the master for an injury resulting from the negligent operation of the automobile by the servant. This rule that a slight deviation will not take the servant out of the master's business so as to relieve the latter from liability for injuries and damage caused during such deviation has been applied in a great variety of situations. The *Page 345 fact that the employer may, to serve some purpose of his own, deviate a few blocks out of his way or choose a different way back, even though it is not the most direct route, does not, as a matter of law, constitute an abandonment of the master's work."
And the following is quoted from 35 Am. Jur., 991:
"Whether the extent of his departure from the scope of his employment, or the area of his service was so unreasonable as to make of his act of deviation an independent journey of his own, rather than a mere detour or one incidental to his employment, is a question of degree which depends on the facts of the case and is a matter for the determination of the jury, unless the deviation is so great, or the conduct so extreme, as to take the servant outside the scope of his employment and make his conduct a complete departure from the business of the master."
The text in 45 A.L.R., 482, upon the subject of "deviation" is as follows:
"It is not every deviation from the direct line of his duties on the part of an employee that constitutes a turning aside from and an abandonment of his master's business; nor does the master's liability cease merely because the servant is acting contrary to, or even in defiance of, express instructions from his master, but the servant must have abandoned and turned aside completely from the master's business, to engage in some purpose wholly his own, before the master ceases to be liable for his act; so that a slight deviation by the servant in charge of a motor vehicle for his own purposes, when he is on business for his master, does not affect the liability of the master for an injury resulting from the negligent operation of his automobile by the servant."
Helpful comment upon the rule and the necessity of submitting doubtful cases, such as that before us, to the jury *Page 346 is found in the opinion in Crowell v. Duncan, 145 Va., 489,134 S.E., 576, 579, 50 A.L.R., 1425, as follows:
"Where it is doubtful whether a servant, in injuring a third person, was acting within the scope of his authority, the doubt will be resolved against the master because he set the servant in motion, at least to the extent of requiring the question to be submitted to the jury. 39 C.J., 1284, and cases cited."
The law of the last quotation was stated verbatim by us in Adams v. South Carolina Power Co., supra, upon the cited authority of several prior decisions of this Court.
The philosophy and justice of fixing liability upon the master for torts committed by a servant who has deviated from the course of his employment, but has not wholly abandoned it, as I think are the circumstances in the instant case, are interestingly expounded in the opinion in Kohlmanv. Hyland, 54 N.D., 710, 210 N.W., 643, 645, 50 A.L.R., 1437, in part as follows:
"We have heretofore said that the underlying philosophy of the Workmen's Compensation Act is that industry, not the individual, shall bear the risk of injury to the laborers engaged therein. Altman v. [North Dakota Workmen's]Compensation Bureau. 50 N.D., 215, 195 N.W., 287 [28 A.L.R., 1337.] There is always present the possibility of injury to employees, notwithstanding every conceivable precaution may be taken to guard against it. So it is when we look at the situation from the viewpoint of the public. There is an ever-present probability that third persons will suffer injury because somebody's servant is careless, disobedient, or unfaithful to his master. This is a real, not an imaginary risk, to which bear abundant witness the development of the doctrine of respondeat superior and the myriad cases where courts have been lost in the mazes of metaphysical refinement in definition between frolic and detour. This latter risk to *Page 347 the public is clearly one which industry, on the analogy of the Compensation Acts, may well be required to carry, within reasonable bounds. He who employs a servant and puts under his control an automobile must know, as every one knows, that it is not improbable that he will, on occasion, depart from strict instructions. As a fact of practical experience, this is beyond dispute; and that it does result in injury to the public the growing number of cases, involving attempted distinctions between frolic and detour, clearly shows. Such a departure from the path of duty may become so great as to amount to an abandonment of the service in the minds of all reasonable men; it should then be a question of law for the court. On the other hand, there is an area, beyond and around the place within which the strict terms of the employment require the servant to remain, into which common experience with, and observation of, human nature suggest that he will, as inclination dictates, probably go, that is, a risk which properly belongs to the business, and injury to the public by the servant while within this area should ordinarily be accepted as a burden upon the industry itself. Whether the servant is within this permissible `zone' of deviation — permissible only in the sense that he is still within his employment — depends on the facts."
I am unable to agree that the fact that Falconer took the wrong road releases his master from the responsibility for his tortious operation of the master's dangerous vehicle. The master sent him out on the highways of South Carolina on undoubted business for the master and the latter should be held responsible, I think, for the damages inflicted by this unfortunate mixture of gasoline and whiskey, in the absence of clearer evidence that he had wholly departed from his duties. This because it cannot be said as a matter of law, upon the evidence in the record, that the servant had totally disengaged himself from the services of his master or deviated therefrom in such a degree that he was no longer *Page 348 in the scope of his employment. He still had the most of the cargo of the master and, having failed to deliver it in Rock Hill, it was surely his duty to return it to Charlotte. Suppose he had started directly there from Rock Hill and committed the tort along that highway, could there be doubt of the master's liability? I think not. This consideration destroys appellant's theory that upon the servant's failure to deliver all the gasoline, he broke off or abandoned the service of his master and the latter is not liable for any tort committed thereafter.
And I do not think it matters that it was the stated intention of the servant to keep an engagement with a girl in York, which may have caused him to deviate from the direct route of return to the master's place of business, for he did not live to carry out such intention. So the effect of it, had it been fulfilled, need not be considered. But quotation from the opinion in our case of Davis v. Littlefield, 97 S.C. 171,81 S.E., 487, 488, is appropriate:
"When a master sends his servant to town on the master's business, we know of no court that has held that, if the servant is induced to go mainly because he wants to make purchases for himself, the private purpose of the servant will relieve the master from liability for the negligence of his servant in the conduct of the master's business."
It is a tribute to the author of the opinion of this Court, from which the foregoing was taken, that years later the American Law Institute adopted the following as a part of their Restatement of the Law of Agency, Vol. 1, p. 530, 531:
"The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is subject to liability if *Page 349 the act otherwise is within the service, as where the servant drives rapidly, partly to deliver his master's goods, but chiefly in order that he may terminate his day's work or to return the vehicle to the master's premises. So also, the act may be found to be in the service where not only the manner of acting but the act itself is done largely for the servant's purposes. Thus, where the servant desires to make a briefdetour of his own and for the purpose of expediting suchtrip places the employer's goods by the roadside, intendingto pick them up later, the act of so placing them may befound to be within the scope of employment." (Emphasis added.)
As a matter of fact, death intervened and Falconer never kept his date in York, so he did not get to attend to the personal mission which he said he intended. Appellant says in its brief: "He (Falconer) was on his way to York to fill a date with a girl, a place he had not reached and a purpose he had not accomplished when the accident occurred." An intention of the servant to depart from his employment does not affect a departure. The case in this respect is similar to Elliott-Trant Motor Corporationv. Brennan, 161 Va., 140, 170 S.E., 601, 602, where the driver intended to deviate materially from the route of his employment, for personal purposes, but got only a short distance in deviation when the accident intervened, and the Court said:
"We are met now with the contention of the defendant's counsel that the intention or mental fixedness of purpose of Loring to make the prospective deviation is controlling of the question in hand, rather than what he actually did or had done at the time of the accident. We are urged that the legal effect of the intended deviation was an abandonment of the business of the master and an adoption of his own business which absolved the master from liability for injury *Page 350 sustained by the plaintiff. If the entire contemplated deviation had actually taken place, we are not ready to say that it would have constituted such a departure from the commission which the servant was executing or such a physical deviation from the most direct route back to the company's place as would have the legal effect urged. We do no have to decide this, in our view. The contention seems not to be sustained by either reason or law."
In like manner in the consideration of this appeal I think Falconer's intended York date is not controlling and if the jury concluded that he had undertaken the fulfillment of it, they may have further reasonably found that he was in part actuated all the while by the motive of serving his employer by delivering the latter's vehicle and cargo to its terminal. The circuitous route he chose to return to Charlotte is not, in my view, conclusive of complete adbandonment of the service of the master, necessary to absolve the latter from liability. Incidentally, the worst of the highway deviation was not directly toward York, indicating that Falconer's date did not alone influence his movements.
It cannot be gainsaid that Falconer was traveling in the direction of defendant's place of business when the wreck occurred, and the jury may well have considered such in their finding that he was sufficiently in the scope of his employment that verdict should be rendered accordingly. I think the trial judge properly concluded that a jury issue was created thereabout, and that he did not err when he submitted the case to the jury. From the evidence, it seems to me that it was no more than the nature of the vehicle Falconer was driving that caused the calamity, than it was the negligent and reckless manner in which he operated it. And I do not think that the maximum extra mileage (he had some choice of routes under his master's instructions) Falconer *Page 351 may have driven, under the evidence, and whether over roads of earth or pavement, enable this Court to properly say, as a matter of law, that he had wholly forsaken his employment or forsaken it sufficiently to absolve his master from liability for his delicts in the operation of his master's vehicle, which contained his master's cargo, on route toward his master's place of business.
I think the trial judge committed no error when he declined to set aside the verdict and said in part, as follows:
"R.L. Bradley, manager of the Charlotte Terminal of the defendant, testified that Falconer as well as all of the defendant's drivers were instructed to take the shortest, most direct and best route and that Falconer was given no specific instructions as to the route to take on the occasion in question. This witness further testified that by best route he meant the best route with reference to traffic conditions, the condition of the road, curves, hills, and not altogether the shortest route. The testimony of the witness, Haffner Morrison, offered by plaintiff in reply, makes an issue of fact for the jury to determine whether or not the route from Rock Hill to Charlotte by McConnellsville (or the cut-off on the McConnellsville Road from the Moore place to the Chester-York highway) and York, amounted to such a deviation as would be a complete departure from the business of the defendant, because this testimony, if believed, would place the truck of defendant at the time of the accident on a route back from Rock Hill to Charlotte, traveling to Charlotte. It is true that the distance from Rock Hill to Charlotte by the actual route taken by Falconer is longer than the more direct route through Fort Mill, which Falconer could have taken. The difference in the distance of the two routes is so marked that it might be contended that the route taken by Falconer placed him outside of his employment, although such a conclusion would involve additional circumstances. But it seems to the Court that when the instructions given to the driver *Page 352 of the truck are considered in the light of the testimony of the witness, Morrison, the jury might have reasonably concluded that Falconer was at the time of the accident on a return route from Rock Hill to Charlotte and within the instructions given to him by the defendant. If Falconer was at the time of the accident returning to Charlotte from Rock Hill on a route within the instructions given to him by the defendant, he was at such time engaged in the business of the defendant even though he intended to attend to personal matters at York, which town he had not yet reached."
Touching the point of the intoxicated condition of the servant, Falconer, and in other respects, the case is somewhat similar in facts to Nelson v. American-West AfricanLine, 86 F.2d 730, 731, opinion by the eminent Judge Learned Hand of the Second Circuit. The action involved the tort of the boatswain of the defendant's steamer, "West Irmo", on a voyage from New York to West Africa, and while the ship was lying in a port on the Congo River. The boatswain, who was described as a sort of foreman of the crew, went ashore and, Judge Hand said, "got roaring drunk" and returned to his ship with much disorder and violence. After chasing other crew members he went into plaintiff's quarters and found him asleep and struck him, ordering him up although it was not plaintiff's hour for duty. There was further altercation and plaintiff was injured. The trial judge held that the drunken boatswain was not acting for the master at the time of the assault, and dismissed the complaint. The able author of the opinion reversing the case for trial discussed the issue with his usual picturesque and impressive language, saying, in part, as follows:
"In truth it was at best an act of wanton tyranny to get him out of his bunk at that time, to say nothing of the violence used in effecting it. But the boatswain was blind drunk, and through his clouded mind all sorts of vague ideas may have been passing; the fact that he had made himself incompetent *Page 353 to further the ship's business was immaterial, the owner had selected him to command, whatever his defects and his addicitions. If he really meant to rouse the plaintiff and send him upon duty, if he really meant to act as boatswain and for the ship, however imbecile his conduct it was his master's.
* * * * * "The inquiry into the tangled mazes of a drunken boatswain's mind may be beyond the powers of a jury, but it is the fact upon which the case turns, and there was enough to justify them in finding that he supposed that he was acting as boatswain and not wholly as a petty tyrant."
It is manifest that in the trial of the case in hand the Court correctly charged the jury all the applicable law for no question is raised thereabout by the very thorough counsel for appellant.
Judgment affirmed.
MESSRS. ASSOCIATE JUSTICES FISHBURNE and OXNER concur.
Mr. CHIEF JUSTICE BAKER and Mr. ASSOCIATE JUSTICE TAYLOR dissent.