McQueen v. People's Store Co. , 97 Wash. 387 ( 1917 )

Morris, J.

The People’s Store Company is a corporation conducting a large department store at Tacoma, employing, among others, William Buhre as a driver of one of its automobile trucks used in the delivery of merchandise to its customers. The duties of this driver are such as usually appertain to a position of like character, requiring him to load the truck at the store with goods and parcels and deliver them to customers in different parts of the city. He had as an assistant a man named Larson, whose duty it was to go with him and carry the parcels into the different homes. On the day of the accident, Myrtle McQueen and a girl friend, acquaintances of Buhre and Larson, met them at Sixtieth and K streets, and engaged them in conversation for a short time. Sometime later, Buhre and Larson were at Fifty-sixth and O streets, when the two young ladies again appeared and again the parties engaged in conversation. Miss McQueen noticed hei* brother-in-law in front of his home a short distance from the place where the automobile was standing, and saying to Buhre, “There is my brother-in-law,” she went around on the opposite side of the truck to conceal herself from her brother-in-law’s view. The young ladies then sat down upon the running board of the car, a long step about twelve inches wide and about twelve inches from the ground, running lengthwise of the car. Upon Larson’s return to the car from the delivery he had been making, Buhre said to the young ladies: “Sit still, girls, and I will drive across the street.” The car was then di’iven across Fifty-sixth stx*eet and onto 0 street. Fifty-sixth street was paved. 0 street was not. As soon as the car left the pavement on Fifty-sixth street, plaintiff states, seeing she was in a dangerous situation, she called upon Buhre to stop the automobile. He either did not hear her or did not heed her, and after going a short distance, she either jumped or was thrown from the car, the automobile passing over one of her feet, causing the injuries complained of. Appellant made the usual motions looking to a dismissal of the action, and for directed verdict and judgment, all of which were denied, and a verdict returned for respondent in the sum of $666.

Appellant presents two questions. First, that, in inviting the respondent to remain upon the running board of the truck while he crossed the street and in conveying her to the place where the accident occurred, Buhre was not acting within the scope of his employment, thus exempting the appellant fx*om liability for his act. Second, that respondent was guilty of contributory negligence. While no decisive test can be given for determining whether or not a given act is within the scope of a servant’s employment, it is apparent from all the authorities that the act complained of must have been done while the sexwant was engaged in doing some act under authority from his master; not that, while engaged in the act, he is employed in the master’s business; but the act must have been in the furtherance of the master’s business and such as may be fairly said to have been either expressly or impliedly authorized by the master. Wood, Master and Servant (2d ed.), § 307. When the servant is authorized to do the act, the master is liable for its performance. He cannot excuse himself because an authorized act was improperly or unlawfully performed. In other words, so long as the thing the servant is doing is in the furtherance of the master’s business, the master must answer for the manner in which the act is done. These and similar statements of the law form the basis of our holdings in Robinson v. McNeill, 18 Wash. 163, 51 Pac. 355; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 125 Am. St. 915, 14 L. R. A. (N. S.) 216; Linck v. Matheson, 63 Wash. 593, 116 Pac. 282; Matsuda v. Hammond, 77 Wash. 120, 137 Pac. 328, 51 L. R. A. (N. S.) 920; and Bursch v. Greenough Brothers Co., 79 Wash. 109, 139 Pac. 870.

In the Matsuda case, it was sought to hold the employer liable for an assault committed by an employee during a controversy arising out of an attempt to collect for goods sold. Liability was denied upon the ground that, while the employment authorized the collection, it would not render the employer liable for the unlawful act of the employee in making the collection. In so holding, Fullerton, J., writing the opinion, rested it upon the principle that the act causing the injury must pertain to the duties which the servant was employed to perform and is being done as a means or for the purpose of doing the work assigned him by the master, citing appropriate authority.

If a servant, while committing an assault, was not acting within the scope of his employment, though authorized to make collection, the assault growing out of a controversy arising out of the attempted collection, then Buhre, in inviting these girls to ride upon the running board of the truck, was not acting within the scope of his employment, there being no question that he had no authority to invite or permit persons to ride with him while delivering merchandise for appellant. The latest expression from this court upon the application of the rule here involved is Gruber v. Cater Transfer Co., 96 Wash. 544, 165 Pac. 491. Gruber was in jured though the alleged negligence of the driver of an automobile truck which had been furnished by the transfer company for the purpose of moving Gruber’s household goods. At the invitation of the driver, Gruber got upon the truck and sat down upon a small trunk facing the rear, from which he was thrown or fell while the truck was passing over an uneven street crossing. The case was disposed of upon the ground that the driver of the truck had no real or apparent authority to allow or permit Gruber to ride upon the truck; or, stated as a legal proposition, that the driver was not acting within the scope of his employment. The Matsuda case and the Gruber case sustain appellant’s first contention: In inviting the girls to ride upon the truck, Buhre was engaged in furthering his own pleasure and not in furthering his master’s business. His employment was to drive the truck. In inviting these girls to ride with him, he was neither doing it as a means nor for the purpose of performing that work. It had no connection with his work, either directly or indirectly. In extending this invitation, Buhre was acting without any reference to the business in which he was employed. It was an independent and private purpose of his own contributing to his pleasure but not to his service. While so acting, he was his own master irrespective of the fact that the facilities afforded him to do his work were instrumental in inflicting the injuries complained of. % Cooley, Torts (3d ed.), p. 1031. This conclusion renders it unnecessary to discuss appellant’s second contention that respondent was guilty of contributory negligence.

The judgment is reversed and the cause remanded with instructions to dismiss the action.

Ellis, C. J., Main, and Chadwick, JJ., concur.