{ "id": 3095801, "name": "Robert Cohen, by Katherine Cohen, his Next Friend, Defendant in Error, v. Charles E. Fayette, Plaintiff in Error", "name_abbreviation": "Cohen v. Fayette", "decision_date": "1924-07-09", "docket_number": "Gen. No. 28,649", "first_page": "458", "last_page": "468", "citations": [ { "type": "official", "cite": "233 Ill. App. 458" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "13 C. B. 237", "category": "reporters:specialty", "reporter": "C.B.", "opinion_index": 0 }, { "cite": "152 Fed. 481", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6749219 ], "opinion_index": 0, "case_paths": [ "/f/152/0481-01" ] }, { "cite": "41 Cal. App. 715", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2046708 ], "opinion_index": 0, "case_paths": [ "/cal-app/41/0715-01" ] }, { "cite": "33 R. I. 531", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 5033037 ], "opinion_index": 0, "case_paths": [ "/ri/33/0531-01" ] }, { "cite": "183 Ky. 675", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4467168 ], "opinion_index": 0, "case_paths": [ "/ky/183/0675-01" ] }, { "cite": "133 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575122 ], "opinion_index": 0, "case_paths": [ "/ark/133/0327-01" ] }, { "cite": "208 Pac. 519", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8868534 ], "opinion_index": 0, "case_paths": [ "/utah/60/0346-01" ] }, { "cite": "75 N. H. 111", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 1797911 ], "opinion_index": 0, "case_paths": [ "/nh/75/0111-01" ] }, { "cite": "207 Mass. 435", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3476853 ], "opinion_index": 0, "case_paths": [ "/mass/207/0435-01" ] }, { "cite": "218 Mass. 258", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 91822 ], "opinion_index": 0, "case_paths": [ "/mass/218/0258-01" ] }, { "cite": "192 Mich. 624", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1630358 ], "opinion_index": 0, "case_paths": [ "/mich/192/0624-01" ] }, { "cite": "254 Pa. 137", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1025416 ], "opinion_index": 0, "case_paths": [ "/pa/254/0137-01" ] }, { "cite": "80 N. H. 304", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4421567 ], "opinion_index": 0, "case_paths": [ "/nh/80/0304-01" ] }, { "cite": "171 N. Y. Supp. 434", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "184 App. Div. 65", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2960049 ], "opinion_index": 0, "case_paths": [ "/ad/184/0065-01" ] }, { "cite": "92 N. J. L. 580", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 192401 ], "opinion_index": 0, "case_paths": [ "/njl/92/0580-01" ] }, { "cite": "218 Mass. 17", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 91739 ], "opinion_index": 0, "case_paths": [ "/mass/218/0017-01" ] }, { "cite": "176 Ill. App. 606", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5352600 ], "opinion_index": 0, "case_paths": [ "/ill-app/176/0606-01" ] }, { "cite": "85 Conn. 111", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 497123 ], "opinion_index": 0, "case_paths": [ "/conn/85/0111-01" ] }, { "cite": "210 Ill. App. 1", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5823484 ], "opinion_index": 0, "case_paths": [ "/ill-app/210/0001-01" ] }, { "cite": "63 Conn. 155", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 8845824 ], "opinion_index": 0, "case_paths": [ "/conn/63/0155-01" ] }, { "cite": "227 Mass. 1", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3450388 ], "opinion_index": 0, "case_paths": [ "/mass/227/0001-01" ] }, { "cite": "96 Ill. App. 144", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 871099 ], "opinion_index": 0, "case_paths": [ "/ill-app/96/0144-01" ] }, { "cite": "86 Ill. App. 38", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5268719 ], "opinion_index": 0, "case_paths": [ "/ill-app/86/0038-01" ] }, { "cite": "231 N. Y. 301", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 92344 ], "opinion_index": 0, "case_paths": [ "/ny/231/0301-01" ] }, { "cite": "22 A. L. R. 1397", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "219 Ill. App. 116", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5431204 ], "opinion_index": 0, "case_paths": [ "/ill-app/219/0116-01" ] }, { "cite": "130 Minn. 412", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 189424 ], "opinion_index": 0, "case_paths": [ "/minn/130/0412-01" ] }, { "cite": "212 Mich. 133", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1739459 ], "opinion_index": 0, "case_paths": [ "/mich/212/0133-01" ] }, { "cite": "71 Me. 432", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 8845046 ], "opinion_index": 0, "case_paths": [ "/me/71/0432-01" ] }, { "cite": "178 Mass. 378", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3480435 ], "opinion_index": 0, "case_paths": [ "/mass/178/0378-01" ] }, { "cite": "45 Conn. 44", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 752044 ], "opinion_index": 0, "case_paths": [ "/conn/45/0044-01" ] }, { "cite": "209 Ill. App. 460", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2919827 ], "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-app/209/0460-01" ] }, { "cite": "177 Ill. App. 367", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2814681 ], "opinion_index": 0, "case_paths": [ "/ill-app/177/0367-01" ] }, { "cite": "287 Ill. 420", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4948764 ], "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill/287/0420-01" ] }, { "cite": "97 Minn. 305", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1712994 ], "opinion_index": 0, "case_paths": [ "/minn/97/0305-01" ] }, { "cite": "5 L. R. A. (N. S.) 598", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "261 Ill. 407", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4742892 ], "opinion_index": 0, "case_paths": [ "/ill/261/0407-01" ] }, { "cite": "263 Ill. 236", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4762187 ], "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill/263/0236-01" ] }, { "cite": "217 Pa. 339", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 953647 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/pa/217/0339-01" ] }, { "cite": "142 Wis. 49", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8699537 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/wis/142/0049-01" ] } ], "analysis": { "cardinality": 853, "char_count": 19208, "ocr_confidence": 0.512, "pagerank": { "raw": 1.6730939033510846e-07, "percentile": 0.6962689716659156 }, "sha256": "9dd19624487279df700627c07526c4c1cba24a5c1c4161a55683fda796dcadbd", "simhash": "1:b852c0af1b2be8a9", "word_count": 3410 }, "last_updated": "2023-07-14T19:12:31.592753+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Robert Cohen, by Katherine Cohen, his Next Friend, Defendant in Error, v. Charles E. Fayette, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Presiding Justice Fitch\ndelivered the opinion of the court.\nThis writ of error is brought to reverse a judgment for damages for personal injuries alleged to have been sustained by the plaintiff when he was struck by an automobile delivery truck belonging to defendant. The three counts of the declaration on which the case was tried charge that the accident happened through the negligence of defendant\u2019s servant in charge of the automobile. With his plea of not guilty, the defendant filed special pleas alleging that at the time of the accident the man in charge of the automobile was not engaged in defendant\u2019s business, but was engaged on business of his own, outside of the scope of any authority given him by the defendant.\nNo question of negligence is discussed in the brief of defendant\u2019s counsel. For the purposes of this writ of error, it is apparently admitted \u2014 or at least, not denied \u2014 that the automobile in question belonged to the defendant and at the time of the accident was being driven by an employee of defendant, that such driver was negligent as charged in the declaration, and that such negligence was the proximate cause of the accident and injury to the plaintiff. The main contention of defendant\u2019s counsel is that the evidence does not show, by the necessary preponderance, that the acts of negligence complained of occurred while such driver was acting in the course and within the scope of his employment, but does show affirmatively that, at the time of the accident, the driver was engaged in pursuing purposes of his own outside of the scope of his employment, and therefore the defendant cannot be held liable on the theory of respondeat superior.\nThe defendant was engaged in selling candies on commission. He had no place of business other than his residence on Leland Avenue, Chicago. He owned a half-ton automobile delivery truck which he kept in a garage on Clark Street near Leland Avenue. The truck was used to make deliveries to customers of the candies he sold, and defendant employed a young man named Auer to drive it. The driver\u2019s hours of work were from eight o\u2019clock in the morning- until six in the evening. The accident happened on May 28, 1920, at half past seven o\u2019clock in the evening. Auer, who lived on Ridge Avenue near Victoria Street, was driving defendant\u2019s empty truck west on Victoria Street and was approaching Clark Street, at a rate of speed variously estimated by the witnesses at from 15 to 40 miles an hour, when the plaintiff, a boy 10 years old, who had been playing on the sidewalk, ran into the street in front of the automobile and was injured. The defendant was not in the car at the time and had no personal knowledge of the facts regarding the accident.\nAn investigator, called by the plaintiff, testified that about 3 weeks after the accident he interviewed the defendant; that defendant then admitted that he owned the car, and that his employee, Auer, was driving it; that defendant also said that Auer \u201chad been out on the north side some place\u201d delivering a load of merchandise and that \u201con his way back to the garage in the car he stopped at his home, as he did sometimes, sometimes changed his clothes, sometimes to get something to eat;\u201d that \u201cVictoria street was the shortest way to the garage\u201d from Auer\u2019s home on Ridge Avenue, and that Auer \u201cfrequently came up that way to go to the garage.\u201d These alleged verbal admissions of the defendant constitute the only evidence offered by the plaintiff on the issue raised by the special pleas.\nThe defendant testified that when he hired Auer some two years before the accident, he told Auer that \u201che was\"not allowed to use the truck after six o\u2019clock in the evening for any purpose whatever,\u201d and that during such two years Auer was always back in the garage at six o\u2019clock at night, with one exception, and that was in December; that \u201chis work was laid out so that he would be back in the garage at six o\u2019clock every night\u201d; that he, the defendant, had never given Auer permission to take the truck to his home, \u201cto change his clothes, or to get meals, or anything of that sort\u201d; and that Auer\u2019s route was \u201cup north into the suburbs\u201d from Evanston to Fort Sheridan. This testimony of the defendant was fully corroborated by Auer, who testified further that on the day of the accident he had been making deliveries \u201csomewhere in the suburbs\u201d and had \u201cgot back to the north side near Mr. Fayette\u2019s place of business, or where he kept his car,\u201d at five o\u2019clock; that he then found he had no further work to do that day for the defendant, whereupon, instead of putting the car in the garage, he drove the car to his home \u201cto eat\u201d; that he did this \"without the permission and contrary to the general instructions of the defendant; that he remained at home over an hour and then, \u201caround seven o\u2019clock,\u201d he started back to the garage, going \u201cup Ridge avenue to Victoria, and Victoria to Clark, where the accident occurred.\u201d\nUpon the question of fact involved in defendant\u2019s contention, plaintiff\u2019s counsel argue that the testimony of plaintiff\u2019s investigator shows that defendant loiew that Auer was in the habit of stopping at his home on his way back from the north shore suburbs \u201cto eat his dinner or to change his clothes, and then take the car on to the garage after dinner,\u201d and that, therefore, defendant impliedly consented to such use of the car by Auer. There is no testimony in the record, other than that of the investigator above stated, that Auer had any such habit or custom, and while the record does not show that defendant specifically denied that he told the investigator that Auer sometimes stopped at his house for dinner or to change his clothing, it does show that defendant testified that, in fact, he never allowed or permitted Auer to do so, and. that during the whole time of Auer\u2019s employment, Auer had never been out with the truck after six o\u2019clock but once, and that was not the time of the accident. Furthermore, no witness disputes the testimony of Auer that on the day in question he did not stop \u201con his way home\u201d to get his dinner, but that after he had finished making his deliveries for that day, he returned to defendant\u2019s place of business (which was near the garage) more than 2 hours before the accident happened, and then, instead of putting up the car, he took it, without permission and contrary to defendant\u2019s instructions, to his home for his evening meal, and after eating his dinner, he \u201cwas on his way back to the garage\u201d \u2014 not from his work, but from his home \u2014 when the accident occurred. We think no jury would be justified in finding from this evidence that defendant impliedly authorized Auer to use the car as it was being used at the time of the accident, or impliedly consented to such use. (Steffen v. McNaughton, 142 Wis. 49; Lots v. Hanlon, 217 Pa. 339.)\nUpon the question of law involved in defendant\u2019s contention, the rule is well settled that where an employer is sought to be held liable for the consequences of the negligence of his employee, and the employer denies that the relation of master and servant existed at the time of the accident, the plaintiff must show by a preponderance of the evidence not only that the person at fault was employed by the defendant, but that the injury was inflicted while the servant was engaged in the master\u2019s business and was acting within the scope of his employment. \u201cOutside of the scope of his employment the servant is as much a stranger to his master as any third person, and an act of the servant not done in the execution of services for which he was engaged cannot be regarded as the act of the master. If the servant steps aside from his master\u2019s business for some purpose wholly disconnected with his employment the relation of master and servant is suspended. The act of the servant during such interval is not to be charged to his master. This doctrine is established by substantially all the authorities.\u201d (Johanson v. Johnston Printing Co., 263 Ill. 236, 240.) In Clark v. Wisconsin Central Ry. Co., 261 Ill. 407, it is said: \u201cWhen not engaged in his line of employment, but in pursuing purposes of his own the master would not be liable for his negligence, even though he was at the time using the instrumentalities furnished him by the master to perform the duties of his employment,\u201d citing the ease of Slater v. Advance Thresher Co., 5 L. R. A. (N. S.) 598, 97 Minn. 305, as \u201ca well considered opinion\u201d on this question. In the Minnesota case the defendant had furnished its agent with an automobile for the use of the latter in performing the duties of his employment. After business hours, and while the agent was driving the automobile on a mission of his own, plaintiff\u2019s team became frightened by reason of the negligent manner in which the agent operated the automobile, and ran away, causing the injury to the plaintiff. It was held that the defendant was not liable for the reason that the negligent act complained of was committed by the defendant\u2019s servant while he was \u201cat liberty from the service of the master, and pursuing his own ends exclusively.\u201d This case was again cited with approval by the Supreme Court in Arkin v. Page, 287 Ill. 420, 422, and by the Appellate Court in Miller v. National Automobile Sales Co., 177 Ill. App. 367, and Szszatkowski v. Peoples Gas Light & Coke Co., 209 Ill. App. 460, 463, and it is supported by the general current of authority. (Stone v. Hills, 45 Conn. 44; McCarthy v. Timmins, 178 Mass. 378; Steffen v. McNaughton, supra; Maddox v. Brown, 71 Me. 432; Drobnicki v. Packard Motor Car Co., 212 Mich. 133; Provo v. Conrad, 130 Minn. 412; Orr v. Thompson Coal Co., 219 Ill. App. 116; 18 R. C. L. sec. 267; 22 A. L. R. 1397 note.)\nWhile plaintiff\u2019s counsel do not deny that the general rule is as above stated, they contend that even if Auer departed from defendant\u2019s business when he took the ear home on the evening in question, such departure had ceased when he started back to the garage after dinner, and that in going back to the garage he was acting in the course and within the scope of his employment \u201cbecause it was his duty to return the car\u201d to the garage. There are cases which so hold upon facts similar to the facts of this case. Riley v. Standard Oil Co., 231 N. Y. 301, is a case of that character. The decision in that case, however, was by a divided court, the majority opinion being opposed by a vigorous and able dissent on the part of three of the seven justices. In many of the other cases to which we have been referred in which a like conclusion was reached, the facts introduced some additional element of liability. For example, in Chicago Consolidated Bottling Co. v. McGinnis, 86 Ill. App. 38, the facts were such that the rule applicable thereto was stated as follows: \u201cIf the servant, in driving his master\u2019s team on his master\u2019s business, chooses an in-, direct route, or deviates from his direct route for purposes of his own, and is yet engaged in performing the master\u2019s work in such indirect manner, the master may still be held liable.\u201d This was the principle applied in Carl Corper Brewing & Malting Co. v. Huggins, 96 Ill. App. 144, and in Donahue v. Vorenberg, 227 Mass. 1. The same rule is also stated in the following language in Ritchie v. Waller, 63 Conn. 155, 163: \u201cIf the servant, in going extra viam, is really engaged * * * within the scope of his employment, it is immaterial that he joined with this some private business or purpose of his own.\u201d\nIn other cases cited by plaintiff\u2019s counsel it appeared that the servant, while engaged in the master\u2019s service, asked and obtained his master\u2019s permission to use the master\u2019s automobile for some temporary private purpose of his own, and was directed to have the car thereafter at a designated place at a specified time ior the master\u2019s use, and the accident happened while he was following such directions and after his own purpose had been accomplished. Such are the cases of Heelan v. Guggenheim, 210 Ill. App. 1, and McKiernan v. Lehmaier, 85 Conn. 111; and the same element of implied authority, arising out of acquiescence in the servant\u2019s use of the car, is a distinguishing feature in Swancutt v. W. M. Trout Auto Livery Co., 176 Ill. App. 606; McKeever v. Ratcliffe, 218 Mass. 17; Ferris v. McArdle, 92 N. J. L. 580; Bila v. Bloomingdale, 184 App. Div. 65, 171 N. Y. Supp. 434, and Tuttle v. Dodge, 80 N. H. 304, cited by plaintiff\u2019s counsel. In Graham v. Henderson, 254 Pa. 137, also cited by counsel, it was held that if a chauffeur uses his employer\u2019s car for his personal use without the consent and in disregard of the orders of the employer, \u201cit would follow that during the time he employed the car, down to the time he returned it to its proper place, the relation of master and servant * * * was wholly suspended,\u201d and the employer would not be liable for the acts of the chauffeur during that time; while, if permission or \u201clicense\u201d had been given, such license would expire when its purpose was accomplished, and the return trip would be on the master\u2019s business.\nBut whether the distinction noted in the case last cited is valid or not, there are many cases, constitu\u00ed- , ing what is believed to be the greater weight of authority, which hold that where a servant, without the express or implied consent of the master, takes his master\u2019s vehicle upon a journey of his own for a purpose wholly disconnected from the work which he is hired to do, the relation of master and servant is suspended during the whole of such journey, that is, that such relation is not resumed until such unauthorized journey is ended; and if a third party sustains an injury through the servant\u2019s negligence while the servant is returning the' vehicle to the place from which he has so taken it, the master is not liable. Brinkman v. Zuckerman, 192 Mich. 624; Hartnett v. Gryzmish, 218 Mass. 258; Fleischner v. Durgin, 207 Mass. 435; Danforth v. Fisher, 75 N. H. 111; Cannon v. Goodyear Tire & Rubber Co., 208 Pac. 519; Healey v. Cockrill, 133 Ark. 327; Crady v. Greer, 183 Ky. 675; Colwell v. \u00c6tna Bottle & Stopper Co., 33 R. I. 531; Lotz v. Hanlon, supra; Gousse v. Lowe, 41 Cal. App. 715; Patterson v. Kates, 152 Fed. 481, and Mitchell v. Crassweller, 13 C. B. 237.\nIn the case last cited, the defendants were ironmongers who were possessed of a horse and cart with which their carman had been out to deliver goods. Returning home at a late hour in the evening, the carman drove up to the shop door to get the keys of the stable for the purpose of putting up the horse and cart. With the keys he was about to proceed to the stable, which was in an adjoining street, and within 500 yards of the shop, when defendants\u2019 foreman, who was ill, asked the carman to drive him a part of his way home. Without obtaining his employers\u2019 permission, the carman drove the foreman part of the way home. In returning thence to the stable he accidently ran over the plaintiff. The court held the employers were not liable, saying: \u201cWhere a servant, instead of doing that which he was employed to do, does something which he was not employed to do at all, the master cannot be said to do it by his servant, and therefore he is not responsible.\u201d In Colwell v. \u00c6tna Bottle & Stopper Co., supra, the defendant\u2019s chauffeur, having finished his work for the day, was directed to take his master\u2019s automobile into the garage and wash it and put it up for the night, but instead of so doing, he took the car to a restaurant to get his supper, and while returning to the garage negligently injured the plaintiff. The court said: \u201cHe had no authority, either express or implied, to use the machine * * * for his own convenience in going to get Ms supper. His use of the automoMle from the time he left the Bradford street garage and during the whole circuit that he made from that point * * * bach to the Bradford street garage, was unauthorized and beyond the scope of his employment. \u2019 \u2019 Similar expressions are to be found in several of the cases last above cited, in all of which the driver was \u201con his way back\u201d from an unauthorized journey with his master\u2019s vehicle when the accident happened. In effect, these cases hold that the servant\u2019s act in returning the car to the place from which he took it is a moral duty to return a thing he had wrongfully taken away, which would be just as potent if he were not a servant.\nUpon the authority of these cases and upon the facts as we find them to be, we think it must be held that at the time of the accident in question, the defendant\u2019s driver was not acting in the course and within the scope of his employment, and therefore the defendant is not liable for the injurious consequences of his negligence.\nThe judgment of the circuit court is reversed and the cause remanded.\nReversed and remanded.\nBarhes and G-ridley, JJ., concur.\nCASES\nDETERMINED IN THE\nFOURTH DISTRICT\nOF THE\nAPPELLATE COURTS OF ILLINOIS\nDURING THE YEAR 1924.", "type": "majority", "author": "Mr. Presiding Justice Fitch" } ], "attorneys": [ "Burt A. Crowe, for plaintiff in error; Roy A. Nutt, of counsel.", "Pratt & Zeiss, for defendant in error; A. Arthur Yort, of counsel." ], "corrections": "", "head_matter": "Robert Cohen, by Katherine Cohen, his Next Friend, Defendant in Error, v. Charles E. Fayette, Plaintiff in Error.\nGen. No. 28,649.\n1. Master and servant \u2014 sufficiency of evidence of existence of relation in negligence action. Where the testimony, in an action against an employer for damages for personal injuries received when a truck owned by defendant and driven by his employee struck plaintiff, showed that after returning to defendant\u2019s garage from his day\u2019s deliveries the driver took the truck and drove to his home, where he had dinner, and was on his way back to the garage when the| accident occurred, no jury would be justified in finding that defendant impliedly authorized the driver to use the car as it was being used at the time of the accident or impliedly consented to such use.\n2. Master and servant \u2014 burden of proof of defendant\u2019s liability for negligence of servant. Where an employer is sought to be held liable for the consequences of the negligence of his employee and denies that the relation of master and servant existed at the time of the accident, the plaintiff must show, by a preponderance of the evidence not only that the person at fault was an employee of defendant but that the injury was inflicted while the servant was engaged in the master\u2019s business and was acting within the scope of his employment.\n3. Master and servant \u2014 when master not responsible for servant\u2019s- negligent driving of motor truclc. If a servant takes a vehicle of his employer for a purpose wholly disconnected from the work which he is hired to do the relation of master and servant is suspended during the whole of the journey and if a third party sustains an injury through the servant\u2019s negligence while the servant is returning the vehicle to the place from which he took it the master is not liable.\nError by defendant to the Circuit Court of Cook county; the Hon. F. S. Wilson, Judge, presiding.\nCertiorari denied by Supreme Court (making opinion final).\nHeard in the second division of this court for the first district at the October term, 1923.\nReversed and remanded.\nOpinion filed July 9, 1924.\nBurt A. Crowe, for plaintiff in error; Roy A. Nutt, of counsel.\nPratt & Zeiss, for defendant in error; A. Arthur Yort, of counsel." }, "file_name": "0458-01", "first_page_order": 486, "last_page_order": 496 }