I find myself unable to join in the view of the majority and shall state briefly the reasons for my dissent.
The facts in this case, upon the point now in controversy, are entirely undisputed and the question therefore becomes purely one of law for the court. It is true that Kuhns was an employee of the defendant and that his regular work was to drive a truck for the purpose of delivering hardware to customers and of bringing in other hardware to the place of the defendant's foundry. It is also true that on the day of the accident he was engaged as such employee in making deliveries for the defendant. He had made a delivery of merchandise at the pumping station at the corner of Beretania *Page 464 and Alapai streets in this city. The next duty that he owed to his employer was to return the truck to the garage, situated on Marine street just west of Nuuanu street. Marine street is practically an extension of Merchant street. It is true, also, that the employee in the performance of his duty is to be regarded as having had the option of a choice of routes from the pumping station to the garage. He chose to drive down Alapai street to King and westward along King. When he reached Alakea street, instead of continuing westward on King street, he turned at right angles to the right, drove up Alakea street for about 400 feet and stopped in front of the Union Trust Company building, near the curb. He so turned mauka, continued to the Union Trust Company building and there stopped, all for the sole purpose of attending to private business of his own, to-wit, for the purpose of obtaining from the Honolulu Finance Thrift Company, whose office was in that building, an extension of the time of a loan from that company to him personally. In approaching the curb and coming to a stop the accident occurred which resulted in the injuries complained of in this action. Upon leaving the trust company building Kuhns drove the truck mauka on Alakea street and then westward along Hotel to Nuuanu street, down Nuuanu street to King street and thence by the shortest route to the defendant's garage. The evidence upon which this statement of facts is based was entirely undisputed. It was not susceptible of any other or different finding, either as to the route taken or as to the purposes moving the driver. It is not even a case of evidence undisputed as to certain facts but susceptible of conflicting inferences from those facts. There is no room to resort in this instance to inferences. The evidence is express, clear and uncontradicted that the sole purpose of the driver *Page 465 in turning mauka into Alakea and going to the Union Trust Company building and in stopping there was to attend to his own private business, wholly disconnected from the business of his employer. Kuhns' testimony was to this effect and was corroborated by that of A.H. Vierra, the office manager of the Honolulu Finance Thrift Company, who testified that the only business done on that occasion by Kuhns with the company was with relation to the extension of the time of his personal note. One other witness testified that on that occasion he saw Kuhns sitting at Vierra's desk in the office of the thrift company. It has not been suggested in this court that there was any reason for disbelieving the testimony of Kuhns and Vierra or for believing that in truth and in fact Kuhns, in entering the Union Trust Company building, did so to transact business for the defendant. What Kuhns' purpose was in entering the Union Trust Company building was not submitted to the jury as a controlling issue. The case was left to it by the presiding judge, apparently upon the theory that from all of the evidence the jury could find either way on the question of whether, in turning up Alakea street and going to the Union Trust Company building, the driver had temporarily abandoned his master's business and was attending solely to his own business.
Under the circumstances, it seems to me that the defendant is not liable for the negligence of its servant. The rule has been repeatedly declared, apparently without dissent, that while a master is liable for the negligence of his servant while the latter is engaged within the scope of his employment, the master is not liable for the negligence of the servant if at the time the servant had turned aside upon and was solely engaged in business or pleasure of *Page 466 his own. It seems to be stated, it is true, with equal unanimity that if at the time the servant was engaged in the double purpose of performing his master's business and of performing his own, the master is liable. While there is no difficulty in extracting these rules from the books, there seems to be endless confusion in the way in which they have been applied to varying facts and circumstances. Many adjudged cases can be cited in support of the application adopted by the majority of this court in the present instance, just as many adjudged cases can be cited in favor of the application which, in my judgment, ought to be made.
There are many cases which seem to turn, one way or the other, upon the subject of deviation from route. Such a deviation, however, as it seems to me, is not the ultimate fact to be sought in any given case, but is simply a fact which tends to throw light, together with or in the absence of other circumstances, upon the ultimate issue of whether, at the time of the accident, the servant was engaged purely in his own business or wholly or partly in the business of the master. A resort to the question of deviation is very often made necessary by the lack or paucity of other evidence or circumstances indicating whether at the time the servant was engaged in his own business or in the master's business, or in both, but in the case at bar there is no such lack of evidence, the evidence being all express and clearly to the effect that at the time the servant was engaged purely in the pursuit of his own personal business, and therefore there is no need to resort to any issue of deviation. It seems to me that the distance that the servant went out of his way in order to attend to his own business alone is quite immaterial. He may go a mile or ten miles or he may go only 400 feet; but once it is clearly established that the turning aside was purely for *Page 467 his own business, a distance of 400 feet is just as effective as a distance of ten miles in exonerating the master from liability.
It is true that it was the servant's duty, after he had delivered the goods at the pumping station, to return the truck to the garage and that that duty was as real after he reached the corner of King and Alakea streets as it was when he departed from the pumping station. To my mind, however, he was not performing that duty either in whole or in part when he went from that corner to the Union Trust Company building. That portion of the route he travelled purely in his own interests and not for any purposes or business of his master. For the time being, he abandoned his master's business. A different question might arise if the accident had happened, not before he stopped at the Union Trust Company building, but after he resumed his journey, and even though in resuming his journey he continued mauka on Alakea street and then travelled westward on Hotel street. Under these hypothetical circumstances it has often been held that the master is liable. Probably, also, there are cases to the contrary.
If, instead of turning at right angles up Alakea street, Kuhns had turned back on King street and had driven half a block to the new offices of the Hawaiian Electric Company, purely for his own private purposes, and in so doing had met with the same accident, can there be any doubt that the master would not be liable? Or if, instead of going up Alakea street only four hundred feet, he had proceeded up that street and thence along Emma street (which is in reality a continuation of Alakea street) to its junction with School street, a total distance of about half a mile, all purely for the purpose of attending to the extension of his personal note, can there be any doubt that the master would not *Page 468 be liable for the results of an accident occurring near the corner of Emma and School streets before the driver had attended to his personal business? It seems to me to be clear that in neither of these hypothetical cases would the master be liable. The turning at right angles to the right up Alakea street was just as clearly and emphatically for the purely personal purposes of the driver as the turning completely around on King street in the first supposed case would have been, or as the driving to the head of Emma street in the second supposed case would have been. I can see no distinction in principle.
In my opinion, the defendant's request for a directed verdict should have been granted, the verdict in favor of the plaintiff ought to be set aside and a new trial should be granted.