
    Manfroy v. The Craig-Curtiss Co.
    (Decided February 9, 1931.)
    
      Mr. Frank Morton, for plaintiff in error.
    
      
      Messrs. Dustin, McKeehcm, Merrick, Arter é Stewart, for defendant in error.
   Levine, P. J.

The parties occupy the same relative positions held in the trial court.

Error proceedings are prosecuted from the decision of the municipal court, which directed a verdict in favor of the defendant. The suit was instituted by plaintiff, Mary Manfroy, against the defendant company, on the theory that an automobile driven and operated by its employee carelessly collided with another machine in which the plaintiff was a passenger, and from which she sustained injuries.

It appears from the record that a Mr. George G. Foster was superintendent for the defendant company; that he owned a Ford coupe automobile which he used to go to various jobs, deliver supplies, and to run errands for his employer; and that at the end of a day’s work he was accustomed to drive the car home to his private garage. The defendant company paid Foster for the upkeep of the automobile.

For some time previous to and on the day the accident happened Foster was at home convalescing from an illness. On the particular day in question he received a telephone call from his employer, instructing him to bring certain papers which he had .at home to his employer’s office. Complying with these instructions, Foster drove his Ford coupe to his employer’s place of business, delivered the papers, and started on his way home. While on his way home he collided with an automobile in which the plaintiff was a passenger. The trial court directed a verdict for the defendant at the close of the plaintiff’s case on the ground that Foster was not at the time of the collision in the service of, or engaged in, his employer’s business.

We are cited to four decisions -which the plaintiff claims support his contention that while Foster was on his way home, returning from his employed commission, he may still be regarded as in the scope of his employment. Industrial Commission v. Dense, 14 Ohio App., 224; Ford, Admx., v. Papcke, 26 Ohio App., 225, 158 N. E., 558; State, ex rel. McCarthy Bros. Co., v. District Court of Hennepin County, 141 Minn., 61, 169 N. W., 274; Regan v. John L. Kelly Contracting Co., 226 Mass., 58, 114 N. E., 726.

It is contended on the basis of these citations that the trial court cannot say as a matter of law that Foster while driving and operating his Ford coupe on the way home was not doing so in the scope of his employer’s business, and that the better rule would be for the trial court to submit the question to the jury as a question of fact.

It is pointed out that Foster in going to and returning from his employer’s office was on his employer’s errand; that having driven in his Ford coupe to his employer’s office, at the direction and instruction of his employer, it became a necessary part of the same errand for Foster to return his car to the garage where he usually kept it; and that the errand was not completed until the car was so returned.

It is conceded by counsel for defendant in error that had the accident happened while Foster was on the way to the office of the defendant in error, liability would have attached to the defendant company for Foster’s negligence. It is urged, however, that after Foster delivered the papers, and left the company’s office, from then on he was his own master and not on the errand of his employer.

It is well that we analyze the doctrine of respondeat superior, which is the basis upon which recovery is sought. As we see it, it is the theory of the law that when the employer has power and control over the acts of an employee, it becomes the duty of the employer to exercise such power and control as to prevent injury to others from the negligent acts of the employee. The responsibility of the employer attaches to him because there is vested in him power and control over the acts of his employee. In other words, power and responsibility go together. In every case where the doctrine of respondeat superior is sought to be invoked, justice requires that a careful inquiry be made into the question whether or not at the time of the negligent act of the employee the employer had legal power and control over such employee, and, if it be found that he had no such legal power and control over the acts of his employee, then no responsibility for the employee’s act can justly attach to the employer.

Judging the present case in this light, it is quite clear that when Foster delivered the papers to his employer’s office and started on his way home the employer had no legal power and control over the acts of Foster while on the way home. Foster could have driven to any destination he cared to, and the defendant company would have no legal right to control his actions, and since it clearly appears that the defendant company had no legal power or control over the action of Foster while on his way home no responsibility can justly attach to the company for such acts of Foster, over which it had no power or control.

Holding as we do, we are of the opinion that the trial court was correct in directing a verdict for the defendant.

Judgment affirmed.

Weygandt and Vickery, JJ., concur.  