Appellant's contention that the trial court erred when he refused to instruct the jury to return a verdict in its favor is on the theory that it conclusively appeared from the testimony that the driver of the truck "was not [quoting] acting within the scope of his authority or employment or performing any service for it at the time the collision occurred."
If it so appeared, of course the court erred as claimed; for, as was said in Railway Co. v. Kirk, 102 Ind. 399, 1 N.E. 849, 52 Am.Rep. 675:
"Where a servant steps aside from the master's business and does an act not connected with the business which is hurtful to another, manifestly the master is not liable for such act, for the reason that, having left his employer's business, the relation of master and servant did not exist as to the wrongful act."
But we do not think it so appeared. While it is true, as is urged by appellant, that the testimony of the driver of the truck that he had traveled two blocks away from appellant's warehouse and was on his way to lunch at his mother's home at the time the accident happened was not contradicted by any other testimony, it is also true that the further testimony of said driver that he had an empty barrel and cans in the truck which it was his duty to return to appellant's warehouse, and that he went from the scene of the accident to said warehouse instead of to his mother's home, was not in any way contradicted. It seems, therefore, that however far the driver may have intended to deviate from a direct route to the warehouse he in fact deviated only two blocks therefrom.
By the rule applicable, "where [quoting from Ritchie v. Waller,63 Conn. 155, 28 A. 29, 27 L.R.A. 161, 38 Am. St. Rep. 361], the deviation is slight and not unusual, the court may, * * * as matter of law, determine that the servant was still executing his master's business."
Considering the matter from the standpoint of what the driver did, instead of from that of what he said he intended to do, we think the trial court had a right to conclude that the deviation was "slight," within the meaning of the rule, and therefore that it appeared as a matter of law that the driver was still executing appellant's business at the time of the accident. Long v. Nute, 123 Mo. App. 204, 100 S.W. 511; Fidelity Casualty Co. v. Ry. Co., 207 Mo. App. 137, 231 S.W. 277; Mathewson v. Edison Co., 232 Mass. 576, 122 N.E. 743; Schrayer v. Bishop, 92 Conn. 677, 104 A. 349; Fisick v. Lorber, 95 Misc.Rep. 574, 159 N.Y.S. 722; Duffy v. Hickey, 151 La. 274, 91 So. 733; Thomas v. Lockwood Oil Co., 174 Wis. 486, 182 N.W. 841.
If, however, we thought the character of the deviation should be viewed from the standpoint of what the driver of the truck said he intended to do, we still would be of the opinion it appeared as a matter of law that the driver had not abandoned the performance of duty he owed appellant, and that his deviating from a direct route back to the warehouse with the intent to go to his mother's for lunch was a mere incident of service he was then performing for appellant, to wit, returning the empty barrel and cans referred to to appellant's warehouse. Schrayer v. Bishop, supra.
And, if we thought the action of the trial court was not supportable on either of the views stated, there is still another view which we think he had a right to take of the case as made by the testimony, and that is that the driver in using the truck (loaded as it was with articles it was his duty to carry to appellant's warehouse) for the purpose of going to his mother's to lunch, combined his own and appellant's business. If the driver *Page 171 did that, appellant was liable as determined by the judgment. 18 Rawle L. L. 797; Barmore v. Railway Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann.Cas. 594, and note, page 607; Tuttle v. Dodge (N.H.) 116 A. 627; Jones v. Lozier, 195 Iowa 365, 191 N.W. 103; Whimster v. Holmes,177 Mo. App. 130, 164 S.W. 236.
It follows from what we have said that we think the contention of appellant referred to should be overruled, as also should its contention that the trial court erred when he refused to give to the jury its requested special issue No. 7 as to whether the driver at the time of the collision was performing any service for it or not.
As noted in the statement above, the jury found (among other things), in response to special issues submitted to them, that it was "customary" for appellant's drivers to use the trucks "to go to lunch in," and that the custom was known to appellant's officers, and "was acquiesced in by them." Appellant insists the submission of such issues was not warranted by either the pleadings or the testimony in the case. Whether that is true or not we will not undertake to determine, for if it should be determined it was true the judgment should not therefore be reversed, if, as we have held, it appeared as a matter of law that at the time the collision occurred the driver had not abandoned service it was his duty to perform, and which he was engaged in performing for appellant. In that event appellant was liable for the driver's negligent conduct, without respect to whether he was using the truck to go to his lunch in with appellant's consent and according to a custom or not.
We do not think the testimony presented an issue as to whether appellee was guilty of contributory negligence on the occasion of the accident or not, and therefore overrule the contention predicated on the refusal of the trial court to submit such an issue to the jury.
There is no error in the judgment, and it is affirmed.