McKeever v. Ratcliffe

The liability of the defendant for the negligence of Hicks his chauffeur in driving the defendant’s automobile depends upon whether Hicks then was acting within the scope of his employment. Cain v. Hugh Nawn Contracting Co. 202 *20Mass. 237, 239. The jury could find that Hicks was permitted by the defendant to use the automobile in going to his dinner at McCarthy’s house and thence to McCarthy’s shop, on his way to the school on Marlborough Street. Reynolds v. Denholm, 213 Mass. 576. But on this occasion, instead of going from McCarthy’s shop directly to Marlborough Street by the usual route, he took another and longer route, apparently for the purpose of carrying one Lydon to or toward the place to which Lydon wished to go. It was while driving along Washington Street with Lydon, but in the general direction of the school, that the accident happened.

If these were all the facts, they would show plausible ground for the contention that when Hicks ran into the plaintiff, he was not doing the defendant’s work, and was not acting within the scope of his employment, but was going on an independent journey for a purpose of his own, the accommodation of one whom he wished to befriend, and not at that time for the purpose of going to the school to carry the defendant’s children home. McCarthy v. Timmins, 178 Mass. 378. Fleischner v. Durgin, 207 Mass. 435. Mitchell v. Crassweller, 13 C. B. 237. Storey v. Ashton, L. R. 4 Q. B. 476. In that event, it of course would make no difference that he intended, after having accomplished his own independent purpose, to resume the performance of his duty to his master. But Hicks testified that he never was instructed by the defendant how to go to Marlborough Street, and could go thither by any route that he chose. Ritchie v. Waller, 63 Conn. 155. Patten v. Rea, 2 C. B. (N. S.) 606. He testified further that after the happening of the accident he told the defendant “the whole story, just the way it was,” and that the defendant said that he (Hicks) had a right to be there on Washington Street, that there was nothing for him to worry about. The jury could find that this was an admission by the defendant that, as between himself and Hicks, the latter properly was driving the automobile in this place in the performance of his duty to the defendant. If so, the fact that Hicks had also the purpose of gratifying a private desire of his own in taking the route that he did was immaterial. Patten v. Rea, 2 C. B. (N. S.) 606.

In its essential features this case belongs to the class of which *21Reynolds v. Denholm, 213 Mass. 576, Ritchie v. Waller, 63 Conn. 155, Whatman v. Pearson, L. R. 3 C. P. 422, and Venables v. Smith, 2 Q. B. D. 279, are examples, rather than to that illustrated by such cases as McCarthy v. Timmins, 178 Mass. 378, Fleischner v. Durgin, 207 Mass. 435, Mitchell v. Crassweller, 13 C. B. 237, and Storey v. Ashton, L. R. 4 Q. B. 476.

The case rightly was submitted to the jury, and there is no suggestion that full and correct instructions were not given to them.

Exceptions overruled.