Kalinowski v. Odlewany , 289 Mich. 684 ( 1939 )

I do not agree that the case of Kieszkowski v. Odlewany,280 Mich. 388, is a controlling precedent as to the legal questions herein involved. In that case it was argued that it could not be held as a matter of law that a slight deviation from route was of sufficient deviation by a servant to relieve the employer from damages. The trial court had found as a matter of fact that there was a slight deviation which was not sufficient to release the employer and entered judgment for plaintiff. On appeal such judgment was reversed and it was held that in alegal sense there could be no such thing as slight deviation; "either there is, or there is not, a deviation." In the instant case, appellant urges as his chief basis for appeal that the question as to whether there was deviation from route, under the circumstances, was a question of fact for the jury; and that whether the servant was acting within the scope of his employment was likewise a question of fact. It is further contended that upon this question, the credibility of the testimony of the servant was for the jury and that the trial court erred in directing a verdict for defendant.

Defendant owned a beer station and a delivery truck in the city of Detroit. Wandor, a friend of defendant, asked for the use of the truck to deliver some wood on a place on Halleck street. Defendant gave him the use of the truck and authorized Bruno Jazinski, a boy 17 years old, to accompany Wandor. After delivery of the wood, Wandor told Jazinski to take the truck back to the store. The truck was headed east on Halleck street. To return, Jazinski could turn the truck around in the street, drive west to the corner of Halleck and Joseph Campau streets, make a left turn, proceed south on Joseph Campau until he arrived at Holbrook and then east on Holbrook to the store. Or, instead, he could drive the car away in the easterly direction in which it was headed, turn right at Conant, and continue south on Conant to Holbrook, and thence west to defendant's store. He chose the latter route. By doing so he avoided the necessity of turning the car around in the street, as well as avoiding the heavy traffic on Joseph Campau and a left turn in such traffic. The route Jazinski chose was longer than the more direct route but avoided difficulties in operation and traffic. From everything that appears, the route chosen was considerably less hazardous than the only alternative route. Jazinski proceeded east on Halleck and turned south on Conant; but before he reached Holbrook, he turned right at Norwalk and proceeded west on that street. This change from the route which he had first planned upon would be no longer, as it was merely a question of going farther south and then turning west or turning west first at Norwalk and afterward going south. Jazinski stated that one of the reasons he adopted this route was that he planned to stop and see a friend living on Norwalk. He stopped at his friend's house but no one was there. He then determined to turn the truck around and go back on Norwalk to Conant, then to Holbrook and west on Holbrook to the store. The reason he gave for this decision was that he was afraid to proceed as he planned on Norwalk west to Gallagher and thence south on Gallagher to Holbrook, on account of parked cars and fast moving trucks on Gallagher. However, after turning around he lost control of the truck on Norwalk and ran over the curb injuring plaintiff. The trial court directed a verdict of no cause of action on the ground that defendant was not liable, for the reason that Jazinski had deviated from his route, and was not acting within the scope of his employment at the time of the accident.

In this case no route was specified for Jazinski. On the question of deviation, it was for the jury to say whether the route selected by Jazinski was feasible.

"Where no route is specified, and the driver, in the exercise of his judgment, selects a feasible one, even though it be not the shortest, there would be no deviation, because the owner impliedly consented to whatever feasible route the driver selected." Kieszkowski v. Odlewany, supra, 393.

Under the evidence, there is ample support for the finding that the route selected by Jazinski was the safest and most feasible to take. Even where a driver takes a route approximately twice as long as the most direct way, if it is for the purpose of avoiding traffic, it cannot be conclusively held that he did not take the more feasible route.Mathewson v. Edison Electric Illuminating Co. of Boston,232 Mass. 576 (122 N.E. 743).

Whether an act of a servant is within the scope of his employment is generally a question for the jury. InNord v. West Michigan Flooring Co., 238 Mich. 669, 673, Mr. Justice McDONALD in discussing the subject, and speaking for the court, said:

"There is another class of cases to which we think the instant case belongs. They are cases concerning the liability of the master where there is not a total severance of the relation of master and servant, but some deviation by the servant from the strict course of his employment. Of these perhaps the leading case is Ritchie v. Waller, 63 Conn. 155 (28 A. 29, 27 L.R.A. 161, 38 Am. St. Rep. 361). In that case one Blackwell was employed by a farmer to draw manure with a team and wagon from a brewery to his master's farm. When he was first employed, his route was pointed out to him. On one of his return trips from the brewery he deviated from his route and drove to a shoemaker's shop on his own business. He left the horses unhitched while he was engaged in the shop. They ran away and caused the injury for which damages were sought against the employer. The court there said:

" 'In making the detour Blackwell was still in charge of his master's team, though on a roundabout way home, carting manure to his master's farm. That was his main purpose and object throughout the entire transaction. In the language of the case last cited (Quinn v. Power, 87 N.Y. 535 [41 Am. Rep. 392]), even if the motive was some purpose of his own, he was still about his usual employment, although pursuing it in a way and manner to subserve such purpose also.'

"Another applicable case is Loomis v. Hollister, 75 Conn. 718 (55 A. 561). There the servant was employed to drive a team in the delivery of ice. His employer showed him the specific route to take and directed him to use it on subsequent trips. One day, after making his last delivery, he started on his return to the stables over the prescribed route, but instead of continuing on it he made a detour over a longer route for the purpose of going by the post office to get his paper. When he reached the post office he left the horses unhitched. They ran away and caused the injury complained of. In a wellconsidered opinion, the court held that whether the servant was acting in the scope of his employment was a question for the jury. Other cases showing the current authority on this question will be found in the annotation toFisher v. Fletcher, 22 A.L.R. 1392 (191 Ind. 529,133 N.E. 834). Applying the principle of these cases to the one under consideration, it may be said that when Mr. Nicholson made a detour to accommodate the young ladies, he was still in charge of his master's truck, returning to the plant for another load of fuel. He was still about his usual employment, although pursuing it in a way to subserve his own pleasure. He was not on a separate journey exclusively for his own business or pleasure, but was, in part at least, about the master's business; and his little joy ride with the young ladies was only an incident to that. The fact that he disobeyed his instructions is immaterial, if he was still in the master's service. Loux v. Harris, 226 Mich. 315. It is usually a question for the jury whether an act of the servant is within the scope of his employment."

A more compelling reason for holding that the question of whether Jazinski was acting within the scope of his employment was a question of fact is that it was for the jury to pass upon Jazinski's credibility as a witness. He was a friend of defendant. He spent most of his time at defendant's place of business and was employed on numerous occasions by defendant, earning pocket money for small tasks and errands. He was defendant's witness on the trial. The jury was under no obligation to believe his story that he intended to stop at the home of a friend or that he did in fact stop there; or that the reason he turned into Norwalk was for the purpose of seeing his friend. If the jury did not believe Jazinski with regard to these matters, plaintiff would be entitled to recover; and the jury could, in passing upon his credibility, take into consideration his friendship for defendant, his interest and his motives in trying to protect the defendant from damage suits arising from the accident. When Jazinski was being examined by the court in a criminal proceeding growing out of the accident, the trial court shrewdly realized the possibility of an attempt by Jazinski to protect defendant when the following took place:

"Q. (The Court) Of course, in all probability, if you were driving the truck with his permission, he would be liable to these people that you hurt for damages — how about that?

"A. No, sir.

"Q. Suppose that some of them bring suit against him, and they bring you into court and put you on the stand, what would you say if that happened; what would you say as to whether or not you were driving that truck with his permission or not?

"A. Without his permission?"

Whether Jazinski was acting within the scope of his employment was the crux of the case. His statement, standing alone, that he turned into Norwalk street for the purpose of seeing a friend, is not conclusive. It was for the jury to pass upon the truth of such testimony. The trial court was in error in holding that the determination of this question was one of law.

The judgment should be reversed and a new trial granted, with costs to plaintiff.