
    No. 341
    HEDRICK v. SWEENEY & WISE CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5362.
    Decided Dec. 11, 1924.
    118. AUTOMOBILES—Owner not liable for act of driver when he diverts from his route and drives master’s truck into another street and thus abandons business of master to serve a purpose of his own.
    Attorneys—Jacob DeKaiser and M C Harrison for Hedrick; Rothenberg, McMorris and Smith, for Company; all of Cleveland.
   SULLIVAN, J.

This case was instituted in the Cuyahoga Common Pleas by Margaret Hedrick, a minor, by her next friend, Katherine Hedrick, wherein action was brought against the Sweeney & Wise Co., for an injury sustained by Margaret due to the negligence of the truck driver, one John Stubor. The counsel for the minor had made his opening statement outlining generally the nature of the injuries and stating that Stubor had been sent by the firm for which he worked from their place of business on Carnegie Ave to Rocky River. He took a route along Superior Ave., and when he arrived at E. 32nd St., he turned there to go to the house of a friend for a purpose of his own. The friend was not at home and Stubor, desiring to continue the original route on Superior Ave. backed onto a private drive, ( where Margaret Hedrick was playing.) It was alleged that because of his negligence she sustained the injuries complained of. At the close of the opening statement the company moved the court to direct a verdict in their favor which was so done.

Error was prosecuted to the Court of Appeals. It was contended that as soon as Stubor discovered that his friend was not at home, and mounted the truck he was again within the scope of his master’s employ. The Court of Appeals held:

The nature and character of the diversion to 32nd St. must be taken into consideration in order to determine when the business of a personal nature ceased and the business of the master resumed.

The injury was sustained while Stubor was yet on private property and had not yet driven into the street. He was backing out of a driveway.

The business of the driver on 32nd street, whether entering thereon or returning therefrom, was absolutely disassociated from any business or employment under the aiithorization of the master or within the scope of employment of the driver. His duties in connection with his employment were resumed when he continued to his destination from 32nd St and Superior.

Judgment of the lower court is affirmed.  