Battistoni v. Thomas

!Feb. 2.

(DEFENDANTS)

AND

CLAUDE M. THOMAS .....

............

RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

J.-In this case the facts are simple and are not in dispute.

The respondent, Morgan Thomas, lives at Steveston, on Lulu Island, an hour's drive south of Vancouver. He had a contract to deliver milk to the Fraser Valley Milk Producers Association, whose place of business (dairy) was in the city of Vancouver, but farther south than was the down-town section of the city. This milk he gathered up in cans from the neighbouring farmers, took it to the dairy in a motor truck, exchanged the full cans for empty cans and distributed the empty cans either the same day or the following morning, to the farmers. He employed his son Claude Thomas to drive the truck and deliver the milk. On Christmas day, 1929, Claude drove his truck load of milk to the city and delivered it at the dairy, where he finished unloading about one o'clock. He had orders to be back home at 3 p.m., when the family intended having their Christmas dinner. Instead of returning home from the dairy as soon as he had delivered the milk, as was his custom, Claude went to the basement of the dairy and there changed his working clothes for a better suit (dressed up) Lamont J. and then proceeded to drive north to the down-town section of the city, having in his truck the empty milk cans. He drove to the Cascade Caf6 where he had his dinner. After dinner he drove to the Dominion Hotel to see his friend Fred Reggy, who lived there. They remained at the hotel a short time and then spent two or three hours driving around the city, after which the two boys went to the Pantages Theatre. After the theatre they decided to go to visit a friend, Smith by name, on the other side of the Union Oil Company's premises. Smith was not at home, so they turned to come back. As they were driving back Claude Thomas ran down and severely injured the appellant. At Union Street headed for the Dominion Hotel, taking Fred Reggy home. After leaving Reggy at the hotel Claude drove to his father's farm.

The sole question in this case is: Was Claude Thomas at the time of the accident, in the course of his employment as his father's truck driver, or was he, as it is put in some of the cases, " on a frolic of his own?"

The contention of the appellant is that when Claude found that his friend Smith was not at home and turned to come back, with the intention of leaving Fred Reggy at the Dominion Hotel and then going on home himself, he was in the course of his employment from the moment he started back from Smith's house, and that his going to the Dominion Hotel was a mere deviation from the direct route home, which does not relieve the respondent of liability. On the other hand the respondent's contention is that Claude was on a frolic of his own from the time he dressed up and drove down town until he arrived back at the Dominion Hotel from Smith's, as all his actions during that time are totally inconsistent with his being engaged on his employer's business.

In cases of this kind the law is well settled. A master is responsible for the consequences of his servant's negligent act only while the servant is on his master's business. That is to say, the master is responsible for the result of the negligent acts of his servant committed in the course of the servant's employment. The difficulty, however, is to deter- THOVAS. mine when the master's employment has ended and the Lam J. servant's frolic has begun, or, as in this case, to determine L when the servant's frolic ended and he again entered upon his master's business.

In the well known case of Mitchell v. Crassweller (1), it was the duty of the defendants' servant, after having delivered his masters' goods, to return to their house, get the key of the stable and put their horse in the mews in an adjoining street. On returning one evening the servant got the key, but, instead of going to the mews, he, without the defendants' leave, drove a fellow-servant in an opposite direction and, on his way back, injured the plaintiff by his negligent driving. It was held that the defendants were not liable. In his judgment, Jervis C.J., said:- Each case must depend upon its own particular circumstances, and no doubt there may be cases in which the master is liable if the servant drives extra viam, but I do not think this is one of them. It cannot be denied that, although the servant was on his master's service up to the time that he arrived first in Welbeck street, he started from thence on a new journey, and not with the intention of performing his masters' busibusiness, but, as it were, upon a frolic of his own; in which case, as said by Parke B. in Joel v. Morison (2), his masters would not be liable. If he had started to go to the stables, and had merely deviated from the direct road to them, possibly, the defendants would have been liable for his negligent driving during the deviation. But I think that to make them liable, he must have originally started upon, and have been at the time of the committing the grievance in the course of following, his masters' employment.

And Maule J. said:- This is not a case in which the servant went a rcundabout way to perform his masters' business; it cannot be said that his journey to Euston Square was a mere ditour from Welbeck Street to the stable. * * * The servant here did something contrary to, and inconsistent with his masters' business; the journey to Euston Square had no connexion with it whatever, and the servant only, not his masters, is liable.

In St. Helens Colliery Company v. Hewitson (3), Lord Atkinson, at page 71, suggested as a test for determining when a workman was in the course of his employment, the following:- A workman is acting in the course of his employment when he is engaged "in doing something he was employed to do."

Or what is, in other and I think better words, in effect the same thing-namely, when (1) (1853) 22 L.J.C.P. 100.

(2) (1834) 6 Car. & P. 501. (3) [19241 A.C. 59.

Another way of stating the same test is found in Salmond on the Law of Torts, 7th ed., page 115, where the author says:- Can it reasonably be said that Claude Thomas, at the time of the accident, was doing something in the discharge of his duty to his employer directly or indirectly imposed upon him by his contract of service, or arising out of it? Or, was his driving west on Union Street so connected with his duty to his employer as to be a mode of performing that duty?

The evidence, in our opinion, shews the very opposite to have been the case. When the two boys set out from the Dominion Hotel and drove around the streets for two or three hours, they were clearly on a frolic of their own. So were they also when they went out to visit Smith. And, as in Mitchell v. Crassweller (1), it was on the return journey (in this case from Smith's to the hotel), that the accident happened.

In our opinion this frolic cannot be said to have ended until they returned to the Dominion Hotel from whence they started. When they started out, Claude was on a journey separate and distinct from that which he had been employed to perform by his father. In coming back to the hotel he was not going in the direction of his father's farm at all, but away from it. In order to have the visit to Smith's house brought within the principle of the " ditour " cases, Claude must have been on his father's business at the time he started to go to Smith's. This clearly was not the case. For several hours before setting out to make the visit the boys had been driving around town, or at the theatre, neither of which pastimes was in any way connected with the business of the respondent. The appellant advanced the argument that it was Claude's duty to take the truck home and that h6 was in the performance of that duty when he started back from Smith's. This argument is founded on two answers made by Claude to questions put to him: he was asked if he was in the course of his employment at the time of the accident, to which he answered, " Yes." As that was a mixed question of law and fact and the very question which the court had to decide, the pronouncement of Claude on the question could not be very helpful. The other answer referred to what he was doing on Union Street. The evidence is as follows:- The learned trial judge stated that he did not accept Claude's evidence that he was going to the Dominion Hotel, but did believe that he was going home. Of course he was going home in the sense that he intended eventually to arrive there, but, in our opinion, the evidence that he was at the time of the accident taking Fred. Reggy back to his hotel is too strong to permit of its being gainsaid. This is not a case of deciding as between the credibility of different witnesses; it is only the credibility of Claude Thomas that is in question. and, as for deciding which part of his story is the more probable, an appellate judge is in as good a position as the judge at the trial. In his judgment in the court below, Mr. Justice Martin called attention to a recent English case, Harrington v. Shuttleworth & Co., which is not reported, but of which a note appears in 171 L.T. Jo. (24th January, 1931), which seems to us to uphold the principle laid down in Mitchell v. Crassweller (1).

There the chauffeur had driven the company's managing director to the Carleton Hotel and, on his way back to the garage, instead of taking one of the orthodox routes, he made a d6tour of two miles out and two miles back to pick up the