
    (Nos. 503-504-505-506-507
    B. F. DARLINGTON, MARGARET DARLINGTON, and MARGARET ANN DARLINGTON, an infant; WILLIAM WARD and NANCY LYNN WARD, an infant, Claimants, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed June 17, 1946
    
    
      Rummel, Blagg and Stone (M. Harper Mauzy) for claimants;
    
      W. Bryan Spillers, Assistant Attorney General, for respondent.
   MERRIMAN S. SMITH, Judge.

These five claimants filed their several claims against the state road commission for damages growing out of the same automobile accident, each claim being for a specific amount. Since the facts and circumstances surrounding the accident are the same the said several claims are combined and heard together.

On Saturday, July 14, 1945, Dewey Taylor, party chief of a surveying crew of the state road commission, together with six other men, had been working below Liverpool and Sandy-ville, about fifteen miles from their headquarters at Ripley. At noon, on that day, they discontinued work for the week and returned to Ripley for lunch. Since it was Saturday that was considered the workday. After lunch Taylor repaired to his room at the hotel in Ripley and checked his notes. He testified that this work required two or three hours. (Record p. 190). He and Walker and Triplett then drove to Spencer, about twenty-five miles from Ripley, in a state station wagon. While at Spencer, Taylor made arrangements at the Spencer-Roane Hotel with the manager, Margaret E. Lockhart, for the following week for lodging and meals for himself and his crew, since they were to change their headquarters from Ripley. About six o’clock P. M., instead of returning to their headquarters at Ripley, Taylor with Walker and Triplett, proceeded to drive to their home at Walton. John Walker was at the wheel when they left Spencer. Upon reaching the suburbs of the town, the station wagon sideswiped a parked automobile belonging to Mr. William S. Ryan, then prosecuting attorney for Roane county. After this occurrence Taylor took over the wheel. When he had driven about twelve miles and while rounding a curve he crossed the center line of the highway on his left and ran head on into a Chevrolet pick-up truck owed by claimant Margaret Darlington, and driven by her husband, claimant B. F. Darlington, causing the accident for which these claims for damages are sought. The accident occurred about two miles from Walton, in Roane county, on route 119, between six and seven o’clock in the evening.

Prom the time that Taylor left Spencer, he elected to be on his own business and was in no way acting within the scope of his employment by the state road commission. As above stated, his headquarters were at Ripley, where the state had provided for his room and sustenance and his going home at Walton was for his own benefit, comfort, and pleasure. No one understood more clearly than Taylor himself that he was on his own business since he had imbibed in strong drink and was under the influence of liquor. While on his way to his home he permitted Walker, without a license, to drive the station wagon and he himself drove it while in a state of intoxication. It is made clear by the evidence that while thus on his way to his home at Walton, Taylor was in no manner engaged within the scope of his employment for the state road commission.

While it is clear that Taylor might be personally liable to the claimants, the evidence is insufficient to warrant or justify responsible for the happening of the accident.

It is our opinion that the compensation commission erred in awarding compensation -to Walker since neither Taylor, Walker nor Triplett were in the furtherance of their employer’s awards to them against the state. The state is in no way business nor within the scope of their employment, nor in any way were they promoting the business of the state at the time of this unfortunate accident.

Awards are, therefore, denied by a majority of the court, and the claims dismissed.

ROBERT L. BLAND, Judge,

Concurring.

These cases are prosecuted upon the theory that the state road commission as principal, through Taylor, as agent, committed the tort which caused the damages for which awards are sought, in the total sum of $17,250.00. While I steadfastly maintain that in the absence of voluntary assumption of liability, the state is not liable for the torts or negligence of its officers or agents, the doctrine of respondeat superior not being applicable to the state, nevertheless, upon the issues tendered by the record I am fully in accord with the views expressed in the majority opinion written by Judge Smith. It is only when acts done by command or while within the scope of employment that a principal or master is responsible for the acts of his agent or servant. That situation does not exist in these cases. It is generally understood that the principal is not responsible for the acts of his agent not within the scope of the employment.

In Clark v. Buckmobile Company, 107 App. Div. 120, 94 New York Supp. 771, it is held that in an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of being struck by an automobile owned by the defendant, the fact that the persons in charge of the automobile at the time of the accident were employees of the defendant does not render the defendant responsible for their negligent acts unless they were then engaged in the defendant’s business.

Whether or not the road commission, an agency of t he state, is responsible for damages sustained by the claimants by the negligence of Taylor.rests upon and must be determined by the inquiry as to whether or not Taylor, at the time of the accident, was acting as agent or employee of the road commission within the scope of his employment.

Although the evidence shows that Taylor was an employee of the state road commission it does not show that at the time of the accident he was acting within the scope of his employment. It is not sufficient to show agency only. It is necessary to show connection of the accident with the employment, which has not been done.

Taylor was employed in the survey department of the state road commission. He was in charge of a crew of seven persons, including himself, whose duties were chiefly in the held. He was designated as party chief or chief of the crew. He was a transit-man, anyone in charge of the survey party having the title of chief of the party. The party ran elevations and made cross-sections. Taylor went to work for the commission in 1927, and left its employ between 1941 and 1942. He was reemployed in 1943, When Taylor reentered the employment of the road commission and was assigned to a project, a station wagon which had been obtained from the Army and fitted for field work was placed at his service for such work. For a period of approximately two months the crew had headquarters at Parkersburg. After the completion of that job it began work in another section, between Sandyville, West Virginia, and Liverpool, Ohio, having headquarters at Ripley, in Jackson county. On Saturday, July 14, 1945, the crew quit work about twelve o’clock noon. Its members went to the hotel at Ripley. While there Taylor checked his notes, the work requiring something like an hour. He also went out to a hardware store for the purpose of purchasing some sandpaper for an old gentleman who was finishing a gunstock for him, this action not being in any way connected with his employment by the road commission. From Ripley, Taylor and others went to Spencer, in- Roane county, where he arranged at a hotel for lodging for members of his crew during the following week. After this he started in the station wagon, which he used in the field, for his home at Walton. When he left Spencer the vehicle was driven by John Louis Walker', a member of his crew. Later Taylor took the wheel of the station wagon. When within two and one-half miles north of Walton, Taylor collided with a motor vehicle in which the claimants were driving. He was intoxicated at the time. Walker was injured in the collision and later received compensation from the workmen's compensation fund; compensation, by the way as shown by the record, which would not have been paid if the true facts had been certified and known by the department.

It is shown by the testimony of L. C. Madden, engineer of plans and surveys, who had overall supervision of Taylor and his crew, that no permission or consent was at any time given to Taylor to use the station wagon in going to his home at Walton on week ends. His use of the station wagon was confined and limited to the field work which he was employed to do for the road commission.

It is manifest from the evidence that at the time of the accident Taylor had finished his work for the road commission for the week and was on his way to his home at Walton, where Walker also resided. He was about his private business. He was on his own personal business, in no way connected with the business of the road commission, and, cosequently, was not at the time of the accident acting as agent of the road commission, nor in the scope of his employment. He was not in'any respect acting under orders of the road commission. He was not performing any service for the state, being merely on his way to his home.

"Where the chauffeur commits injury while driving for himself his employer is not liable.'’ Huddy on Automobiles, Section 284, 4th Ed.

Tested by recognized authority of law claimants have failed to show that they are entitled to awards in these cases. Lamentable as the accident is shown to have been, it would be a miscarriage of justice to recommend an appropriation of the public revenues by way of awards. The interests of the taxpayers cannot be overlooked.

CHARLES J. SCHUCK, JUDGE,

dissenting.

The question involved in the issue presented for our consideration and determinaron and as shown by the majority opinion is, of course, whether or not Dewey Taylor, the state road employee in charge of the station wagon which collided with claimant’s truck and brought about the injuries in question, was at the time of the collision acting within the scope of his employment. That he was grossly negligent in causing the accident, and that none of the claimants were guilty of any contributory negligence is in fact admitted, and need not be considered by me in this dissenting opinion.

Dewey Taylor had been employed by the state road commission at different times for a period of about eighteen years. He was last employed by the commission in October, 1943, vand thereafter remained in its employ continuously until the time of the accident; from 1938 to 1942 and from 1943 to the date of the accident in July 1943, had acted as a crew chief or field superintendent in charge of some six or seven men comprising a surveying crew. The men were under his supervision and direction, and he was responsible to the road commission for their activities. His immediate superior was L. C. Madden, chief engineer of the plans and survey department of the state road commission. Taylor moved his crew from place to place as directed, and as his particular work required, and likewise made arrangements for their accommodations and supervised their work in the field.

The testimony reveals that on each job convenient field headquarters would be established where board and room for the men could be obtained and that the arrangements for such accommodations were in the hands of and carried out by Taylor. The crew usually worked from eight o’clock A. M. to four o'clock P. M., except Saturdays, when they would quit at twelve o’clock noon. Taylor, in his supervisory capacity, had other duties in connection with his work, namely, the bookwork reflecting the work and progress that had been made on a job and which was summarized for the purpose of reporting the details to his superior at headquarters; this work required extra time on his part and was usually performed either at his home or at and near the place where the crew was employed. This bookwork, of course, was a necessary part of his employment, and on the day of the accident, according to the testimony, he had been engaged for several hours at Ripley, West Virginia, the place of the crew headquarters, in finishing and completing the facts and figures concerning the survey that was being made some fifteen miles from Ripley. Ever since he began to act as crew chief, back in 1 938, the road commission had furnished him a motor vehicle or station wagon to use in and .about the performance of his duties. He was entrusted with the complete custody, control, and management of such vehicle, and of course would be responsible for it during all of the period that it was in his charge and care. I make the positive observation that the record reveals that Taylor was never at any time given any specific instructions or directions, either oral or written, by his superior or anyone else in the road commission as to what use he could or could not make of the vehicle. Of course, the evidence shows that the question was asked Madden, his immediate superior, as to whether he had given him any authority to use the station wagon; it was answered in the negative, but this testimony means absolutely nothing so far as the authority vested in Taylor in using the wagon in question was concerned. It was not denied that he had the right to use it at all times; that he did so use it, and that he had not only used it three or four times while working on the job near Ripley to return to his home as he was doing at the time of the accident, but that he had also used it while working on a job near Parkersburg in driving to his home over the week end. These facts, to my notion, establish beyond all question that full authority had been given to Taylor to use the station wagon at all times in the'course" of his employment, and especially so in going to his home over week ends; and further that his use of the wagon under the circumstances and facts as revealed lead to the conclusion that this was part of the consideration of his employment and seemingly expeditious in carrying out his work, and therefore in the end beneficial to the road department.

The accident happened, as indicated, through the gross negli-14, 3 945, the date of the accident, Taylor and several of his crew left Ripley at about two o’clock P. M. on the way to the home of the said Taylor and one John Walker, a member of the crew, both of whom lived at Walton. Taylor intended to stop at Spencer, and did stop there, where he negotiated arrangements with the manager of the hotel to accommodate his crew at that particular place and which was being moved from the operations near Ripley to new work in and about Spencer.

The accident happened, as indicated, through the gross negligence and carelessness of the said Taylor, between Spencer and the town of Walton about six-thirty or seven o'clock on the night in question, and was caused by Taylor deliberately crossing to the wrong side of the road and bringing about, while traveling at a rather high rate, of speed a violent collision with the claimants, who were traveling in the opposite direction and thereby causing serious injuries to (he claimants and perhaps serious permanent injuries to at least one of them. Taylor, at the very scene of the accident, admitted his negligence and carelssness. Throughout the hearing and nowhere in the majority opinion, is any negligence of any kind imputed to the claimants or any of them.

In my opinion, considering all the circumstances, namely, that Taylor was acting in a supervisory capacity and at places and points away from the employer’s main headquarters, that he was vested with the right to exercise judgment and discretion in the performance of his own duties as well as those of his crew; that no specific instructions, either oral or written, had ever been given him defining and limiting the range or scope within which he could act, made him, in fact, a sub-principal and liable in a higher degree for injuries to innocent third persons than some minor employee of the crew would have been. Taylor himself was driving the station wagon at the time of the accident.

Courts have held as shown by the case of Ashland Coca-Cola Bottling Co. et al v. Ellison et al, 252 Ky. 172; 66 S. W. (2d) 52, that, where the employee’s timéis not confined and calls for the general supervision of the company’s business through traveling over the territory and with general authority to use the company’s automobile, circumstances tending to support the charge that he was about his master’s business assume an importance and call for consideration greater than would the same circumstances were the employee a minor one. So also, have courts held that the relationship of master and servant does not depend merely on the time employed at the employee’s actual work, but may exist outside of actual working time. Our own West Virginia Court' of Appeals has several times held that the real test or criterion of whether a servant's act is within the scope of his employment lies in the relationship which the act done bears to the employment. Cochran v. Michaels 110 W. Va. 127; and other cases.

That Taylor stopped at Spencer and made the arrangements for accommodations for his crew which was to be quartered the following week is uncontradicted. However, the state road de partment insists that Taylor was drunk or intoxicated at the time of the accident and that under the circumstances as herein set forth, he was not acting within the scope of his employment It may be well to dispose of the question of intoxication before considering the other matter which I believe to be conclusive so far as the liability of the state road commission is concerned.

As is so ably set forth in claimant’s brief, I hold to the opinion that whether or not Taylor was intoxicated is immaterial upon the inquiry as to whether at the time of the accident he was acting within the scope of his employment. Blashfield's Cyclopedia of Automobile Law & Practice, Vol. 5, Sec. 3036, and cases cited, lays down this rule, which in my judgment controls so far as the question of intoxication involved in this issue may be concerned, to wit:

"According to some authority, and probably the . better rule, the taking of a drink by a servant in violation of his instructions is not such a deviation, of itself, from his duty as to sever pro tempore the relationship of master and servant and to relieve the master from liability for his negligence in operating the vehicle while intoxicated.
"Consequently, if the servant is acting otherwise within the scope of his employment, the master is liable for damages arising from acts of the servant, although, the servant at the time was intoxicated. This is true, although, the master did not know that the servant was intoxicated.’’ Blashfield’s Cyclopedia of Automobile Law & Practice, Vol. 5, Sec. 3036, and cases cited. Cleveland Nehi Bottling Co. v. Schenk (C.C.A. Ohio), 56 F. (2d) 941; Dixon v. Haynes, 146 Wash. 163, 262 P. 119; Crockett v. U. S. (C.C.A. W. Va.), 116 F. (2d) 646; Taylor v. Joyce, 4 Cal. App. (2d) 612, 41 P. 62d) 967; V. L. Nicholson Const. Co. v. Lane, 177 Tenn. 440, 150 S. W. (2d) 1069; Erdman v. Henry S. Horkheimer & Co. etc., 169 Md. 204, 181 A. 221.

The matter of whether Taylor was intoxicated or not is of itself not germaine to the solution of the question involved. If it is determined that he was acting within the scope of his authority, I repeat, the question of intoxication does not enter save, and save only, as a warning to the road commission that in the future men and employees of Taylor’s habits and disposition should not at any time be entrusted with the use of state automobiles, property, or station wagons.

As heretofore shown Taylor was accompanied by an employee, John Walker, both of whom resided at Walton. In the accident Walker was injured, having received a broken arm. His employer, the state road commission, was a subscriber to the workmen’s compensation fund. Walker applied for compensation benefits and his claim was allowed and paid. The employer’s report of injury disclosed the day, hour, place and circumstances under which the injury was received, and was certified true and correct by Walker’s chief, namely, Dewey Taylor, and transmitted to the compensation commissioner by L. C. Madden, the chief engineer of the plans and survey department from the commission’s headquarters. In his letter of transmittal Madden wrote "I am transmitting Form CD-13-B covering injuries to John Walker, who is employed in the Plans and Survey Department of the State Road Commission.” Madden, himself, approved and certified as correct the application for the allowance of Walker’s doctor and hospital bills. Subsequently the compensation commissioner en'ered a formal order to the effect that Walker’s injury had been received in the course of and resulted from his employment. The claim was allowed and fully paid. The state road commission was no doubt fully conversant with the facts and circumstances giving rise to Walker’s injury and his claim for compensation, and even assisted him in securing the allowance thereof and at no time protested in any manner against the allowance or payment thereof on (he ground that his injury was not received in the course of his employment or as the result of any misconduct, or of any disobedience of any rules or instructions.

If Walker was acting within the scope of his employment at (he time of his injury, as certified to by the road commission engineer, which action, of course, would bind the road commission itself, it necessarily follows that Taylor was also acting within the scope of his employment at the time of the accident and consequently responsible for the damages that may have been incurred by his negligent act. Being the employee of the state road commission, the principal becomes responsible and I cannot countenance the idea that any department should be allowed to "blow both hot and cold” under the conditions and facts as presented here. It is not only ridiculous, it is unconscionable to assume that Walker, who was paid compensation, was within the scope of his employment, and that the contrary position must now be assumed that Taylor was not acting within the scope of his employment in order to escape liability for the damages incurred to the claimants by the accident. Both were riding in the station wagon at the time: both were oh their way to their homes in the same town after their work for the day had been finished; both were servants of the road commission: both were acting within the scope of their employment when the accident happened, and both, so far as their relation to their master-employer is concerned, must be governed by the same rule of responsibility to innocent third persons. I repeat, if Walker was acting within the scope of his employment at the time of his accident, as certified to by the road commission, so, also, was Taylor and there can be no escape from this conclusion.

An award should be made to these seriously injured claimants and the Legislature should so act, in my opinion, to discharge a moral obligation devolving upon the state and the agency here involved.  