
    CANNON v. GOODYEAR TIRE & RUBBER CO. OF CALIFORNIA.
    No. 3739.
    Decided April 21, 1922.
    Rehearing denied July 1, 1922.
    (208 Pac. 519.)
    Master and Servant — Negligent Truck Driver Held not Within Scope of Employment. Driver of defendant’s delivery truck, after having made the last delivery for the day drove the truck to his home and used it in moving furniture for himself, and subsequently when driving the truck to the garage of the employer, ran into and injured plaintiff. Held, that driver was not acting within the scope of his employment, and that the employer was not liable.
    
    Appeal from District Court, ■ Third District, Salt Lake Couuty; Wm. M. McCrea-, Judge.
    Action by William Narl Cannon against the Goodyear Tire & Rubber Company of California. From a judgment for defendant, plaintiff appeals.
    AFFIRMED.
    
      ILurd & Hurd, of Salt Lake City, for appellant.
    
      Frank J. Gustin and Rich, Rich & Roberts, all of Salt Hake City, for respondent.
    
      
      
        Ferguson v. Remolds, 52 Utah, 583, 176 Pac. 167.
    
   THURMAN, J.

Plaintiff brought this action to recover damages for personal injuries sustained by him in an automobile accident occurring on one of the streets of Salt Lake City December 27, 191$. It is alleged in the complaint that on the day last mentioned plaintiff was driving a Ford truck and stopped at a point on South Temple and Second West streets in said city for the purpose of making certain repairs; that he stopped a distance of about two feet from the south curb of said South Temple street, and while so stopped for the purpose aforesaid defendant, by its servant, Henry Kratzer, negligently, carelessly, and recklessly drove a large, heavy, and powerful automobile truck belonging to defendant against plaintiff’s Ford truck with such force and violence as to cause the same to be knocked, pushed, and driven against, upon, and over the plaintiff, thereby inflicting upon him serious injury to his damage in the sum of $20,000.

Defendant, answering the complaint, among other defenses, alleges that the accident did not occur at a time when the said Henry Kratzer was acting within the scope of his employment with the defendant, but at a time when he was engaged in his own business.

The ease was tried to a court and jury. At the conclusion of the evidence defendant moved for a directed verdict chiefly upon the ground that Henry Kratzer, the driver, was not acting within the scope of his employment with the defendant at the time of the accident. The court granted the motion. A verdict was rendered for defendant, and judgment entered accordingly.

The order of the court directing a verdict for defendant is assigned as error, and is the only question presented for our determination.

The evidence is without substantial conflict to the effect that on the day of the accident which resulted in the injuries complained of by plaintiff Henry Kratzer was, and for some months previous thereto had been, in the employment of the defendant; that on the day in question his employment was that of truck driver for the delivery of express matter, parcel post packages, and freight, and for that purpose some weeks before the accident he had been furnished by the defendant with the truck driven by him at the time the accident occurred. The hours of his employment during every day of the week except Saturday and Sunday were from 8:30 a. m. to 5:30 p. m., and on Saturday from 8:30 a. m. to 1 o’clock p. m. from which hour until 8:3Q a. m, on the Monday next following his time was his own. The closing hours above mentioned were subject to a slight variation in order to finish the last trip of the day. The driver, Kratzer, was under general instructions to not use the truck except on business for the defendant company. On two or three occasions previously he had been given permission to use the truck for his own accommodation, but on the day of the accident no such permission had been given. There was also a standing instruction, of which Kratzer was cognizant, that at the conclusion of the last trip for the day the truck was to be immediately returned to the garage. The garage was situated between Main and West Temple streets On Second South street, while defendant’s office and place of business was between Third and Fourth West on Second South, about four blocks west of the garage.

On Saturday, December 27, 1919, at 12:15 p. m. Kratzer started on his last trip for the day. The trip included the delivery of an express package at the Oregon Short Line depot on Third West and South Temple streets, and it is estimated by the stock clerk who kept the books and records for defendant that Kratzer would finish the trip about 1:10 p. m., and entry was made accordingly. Kratzer made the delivery of the express package at the depot as contemplated, but, instead of returning the truck to the garage immediately, pursuant to instructions, he drove from the depot to North Temple street; thence across the viaduct to Ninth West street; thence north tq Fourth North street; thence west to Eleventh West street and spent the afternoon until about a quarter to 6 p. m. on business of his own, during which time he used the truck moving furniture for himself and spent the remainder of the time at his home assisting his wife in their household affairs. At a quarter to 6 he started with the truck in the direction of the garage and returned by way of the Oregon Short Line depot; thence east on South Temple street to a point just east of Second West street where the accident occurred.

Kratzer testified that his final duty on each day was to return. the truck to the garage. He also testified that on the day of tbe accident he quit the company’s business at 1:30 p. m., and that the time from that hour until 8:30 a. m. the following Monday was his own.

The foregoing facts are clearly deducible from appellant’s abstract of the evidence, and the abstract truthfully reflects the record.

It is conceded by appellant that Kratzer’s time was his own on the day of the accident from the time of making his last delivery down to the hour when he started to return the truck to the garage, and especially down to the time when he passed the Short Line depot on the return trip, but it is earnestly contended that from that point on to the garage he was in the service of defendant, because his final duty to the defendant was to return the truck to the garage. In support of this contention many automobile accident cases involving the doctrine of respondeat superior are called to our attention. Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236; Samuels v. Hiawatha Holstein Dairy Co., 115 Wash. 343, 197 Pac. 24; Dale v. Armstrong, 107 Kan. 101, 190 Pac. 598; Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080; Ferguson v. Reynolds, 52 Utah, 583, 176 Pac. 267; McKiernam v. Lehmaier, 85 Conn. 111, 81 Atl. 969; Kneff v. Sanford, 63 Wash. 503, 115 Pac. 1040; 26 Cyc. 1529-1535.

In Whimster v. Holmes, supra, it does not appear but that the accident occurred within the hours of the servant’s employment. The defendant was held Rabie. ^

In Samuels v. Hiawatha Holstein Dairy Co., supra, the evidence was conflicting, and consequently was a case for the jury. Besides this, the decision was controlled by a positive statute.

In Dale v. Armstrong, supra, the chauffeur of defendant deviated somewhat from his 'employment to do an errand for a third person. In answer to special interrogatories the jury found that at the time of the accident he was engaged in performing a special service required by his employer. Like the Whimster Case, the time of the accident appears to have been within the hours of his employment. A judgment for plaintiff was affirmed.

In Snyder v. Eriksen, supra, the servant of defendant was directed by his superior to take a motor truck and drive it home to get his dinner in order that he might sooner return and resume his regular employment. On his way to dinner, through his negligent driving, an accident occurred. Defendant held liable.

Furguson v. Reynolds, supra, has no application.

In McKiernam v. Lehmaier, supra, the first headnote reflects the opinion of the court as far as it concerns the question here:

“A chauffeur who, having taken his employer to the theater, and been told to he back there at a certain time, and then been loaned money by the employer for a háir cut, ran into a person when, after going the round of the barber shops, to find a barber at leisure, he was returning to the theater, was then acting within the scope of his employment.”

In Kneff v. Sanford, supra, as indicating the point decided and the opinion of the court, we quote the first paragraph of the syllabus:

“An owner of automobiles for hire kept them standing in front of a hotel in charge of chauffeurs. A chauffeur while on duty took from the hotel a telephone girl working there to her home without collecting fare. On his return to the hotel the chauffeur injured a pedestrian. Held to prima facie show that the chauffeur acted within the scope of his employment at the time of the accident, and the owner was liable to the pedestrian for the injuries received.”

It was field, fiowever, in view of the evidence for the defendant, that the question was one for the jury.

Appellant also cites Noblesville & E. G. R. Co. v. Gause, 76 Ind. 142, 40 Am. Rep. 224, in which the evidence tended to show that a certain tollgate was at all times in charge of the tollgate keeper as the only officer and agent of the defendant company, but that he did not receive tolls after 9 o’clock p. m. It was held by the court that no inference should be drawn that he ceased to be an agent of the company after that hour.

It must be conceded that the foregoing cases as authority for appellant’s contention are far from satisfactory. Many of them have no application at all to the case at bar, and none of them are even remotely in point when we come to consider the real crux of the question involved.

That it was the duty of Kratzer to return the truck to the, garage, even if it was done at a belated hour, is not and cannot be a debatable question. It would have been his duty to return it even if he had feloniously stolen, taken, and driven it away. There is both a moral and a legal duty imposed upon every man to restore to the owner property wrongfully taken or withheld, and this duty is in no sense dependent upon the relation of master and servant or of employer and employé. Hence, when we speak of the duty of Kratzer to return the truck to the garage, it signifies but little in the instant ease, unless from the nature of the case we can also determine the character of the duty. As further emphasizing the views of the writer, let us suppose that when Kratzer made his last delivery for the day at the Short Line depot he had immediately returned the truck to the garage in pursuance of his employer’s instructions. Suppose further that after returning the truck to the garage he had later called for it and taken it away and had then done the very things he did do, as detailed in the evidence. In such case it could not be consistently contended that in returning the truck to the garage he was engaged in the business of the defendant or acting within the scope of his employment. That such a contention .could not be sustained by either reason or authority seems to me to be beyond the possibility of rational disputation. It would not only be contrary to reason and authority, but would also be the rankest kind of injustice and oppression, to hold that returning the truck to the garage in the case supposed was a service within the scope of Kratzer’s employment so as to render his employer responsible for his negligence. I see no difference in principle, as far as the proposition of law is concerned, between the case supposed and the case disclosed by the record. 'In the one case he wrongfully withheld possession of the truck after it should have been returned to the garage; in the other he wrongfully took it into his possession. In either case he was both morally and legally bound to return it, entirely independent of any duty incident to Ms employment. In tbe course of this discussion tbe fact should be continually borne in mind that from 1:30 p. m. on tbe day of tbe accident until 8:30 a. m. on tbe Monday following Kratzer was complete master of Ms time and was in no sense subject to tbe defendant’s direction or control. Whatever be did in such circumstances during said period of time certainly should not be attributed to bis employer, who bad no knowledge of what be was doing nor power to direct or control bis conduct. This is tbe principal distinguishing feature between this ease and tbe cases upon which appellant relies.

From tbe standpoint of reason alone, without reference to adjudicated cases in support of tbe views herein expressed, the court is of tbe opinion that the order of tbe trial court directing a verdict for tbe defendant was right and should be affirmed.

In view of tbe conclusion reached it is not necessary to review tbe cases relied on by respondent, practically all of which are more or less in point. We will cite tbe cases, however, for the benefit of those who may desire to further investigate tbe question. Danforth v. Fisher, 75 N. H. 411, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Morier v. St. Paul Railroad, 31 Minn. 351, 17 N. W. 952, 47 Am. Rep. 793; Colwell v. Ætna Bottle & Stopper Co., 33 R. I. 531, 82 Atl. 388; Howe v. Leighton, 75 N. H. 601, 75 Atl. 102; Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842 Ann. Cas. 1918D, 238; Gousse v. Lowe, 41 Cal. App. 715 at page 719, 183 Pac. 295, and cases cited on page 296; Fleischner v. Durgin, 207 Mass. 435, 93 N. E. 801, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291; Reilly v. Conable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656.

In Gousse v. Lowe, supra, the court, at page 296 of 183 Pac. (41 Cal. App. 719), commenting on the proposition urged by appellant in tbe instant case, says:

“In a very few eases in other states when the tort occurred on the homeward journey of the disobedient servant the master has been held liable, but the great current of authority, in this country and in England, is against those isolated cases” — citing cases.

The judgment of the trial court is affirmed at appellant’s cost.

CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.  