Wilson v. Steel Tank Pipe Co. , 152 Or. 386 ( 1935 )

The sole question for decision upon this appeal is whether the defendant company is answerable for the negligent acts of George C. Dierking, one of its officers, while he was returning to his own home after the completion of his day's work and while driving his own automobile.

The admitted facts are that on October 24, 1933, the plaintiff sustained personal injuries in a collision between an automobile in which she was riding and one driven by Dierking; that during the afternoon preceding the accident, Dierking had gone from the defendant company's plant to Vancouver, Washington, on company business and, after completing such business, was returning in his own car to his own home, and not back to the company's plant.

Under such circumstances, it does not seem reasonable to say that there was any corporate liability on the part of the defendant company. It must be borne in mind that we are not now dealing with the question of whether the company would have been liable had the accident happened while Dierking was going to Vancouver on business for the company, or while going there had deviated from the usual route, or if the accident had happened while Dierking was driving a car belonging to the company, or, if at the time of the accident, he had been going somewhere for the purpose of performing some duty or service which he owed to the company. On the contrary, he had completed his services for the day and was merely returning home in his own car, choosing his own route and, while doing so, was not subject to the orders or control of any other person. If the company is liable under the undisputed facts of this case, then every corporation would be answerable for the negligence of every officer of the corporation after they had left its place of business at the end of their day's work and while returning to their own homes in their own cars.

Under the maxim, qui facit per alium, facit per se, the act of the servant, while engaged in his master's business and acting within the scope of his authority, is the act of the master. "This rule", said Chief Justice Shaw, "is obviously founded on the great principle of social duty that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it.": Farwell v. Boston, etc., R. Corp., 4 Met. (Mass.) 49 (38 Am. Dec. 339). As pointed out in 2 Street on Foundations of Legal Liability, p. 467:

"One of the necessary implications of the fundamental axiom of agency is that the act of the servant, before being imputable to the master as his, must be done by the servant in the capacity of servant."

On the following page, he says:

"The proper criterion by which to determine whether in a given case the relation of master and servant exists is found in the right of the master to order and control the other in the performance of the work. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct, the means also; or, as it has been put, `retains the power of controlling the work.'"

Again, as said:

"The relation of master and servant exists when the employer retains the right to direct not only what shall be done but how it shall be done."

New Orleans M. C.R. Co. v. Hanning, 15 Wall. (U.S.) 656 (21 L. Ed. 220).

Obviously, under the undisputed evidence in this case, Dierking, at the time of the accident, was not acting as a servant or agent of the defendant company, but was transacting his own business in his own way. As to him, the authority of the master ceased when he left Vancouver after having fully completed the duties that had been there intrusted to him. These duties did not require him to return to the defendant company's plant and it was admitted that Dierking was on his way home at the time the accident occurred. Whether he went home that night or whether he stayed in Vancouver and, if he went home, what route or means of conveyance he took to reach home were matters in which the defendant company had no concern. He exercised his own choice and, while doing so, the defendant company ought not to be held liable for his acts. This case, therefore, ought not to be governed by any sentimental sympathy on the part of the court and the consequent desire to enforce reparation from some responsible person if Dierking, against whom plaintiff has recovered judgment, is, as intimated, insolvent. As was said by Professor Pollock in his Essays in Jurisprudence, 118:

"A wrong without a remedy is, in theory at least, odious to the law; but in many cases the law cannot prevent the remedy from being only nominal. It may compel wrongdoers to pay if they can, but it cannot make them solvent; and it must now and then happen that an injured person has no better comfort at his hands than a right of action against a man of straw. To the popular mind a remedy not substantial is no remedy at all, and a result of this kind is not only unsatisfying (as it must be to every honest man), but unintelligible. Hence there is a natural endeavor to fix responsibility on some one who can pay. In the case of injury suffered through a servant's negligence, the servant, generally speaking, cannot pay, and the master can; and the feeling that compensation ought to be had somewhere, jumps at the master's liability."

While this instinctive desire upon the part of all persons is a good argument in favor of compulsory automobile insurance, it ought to afford no ground for holding the defendant company in this case responsible for acts over which it had no control. For these reasons, I can not concur with my associates in holding that the judgment against the defendant company should be affirmed.