# Davis v. Kukar

> Supreme Court of Arkansas · May 21, 1962 · 235 Ark. 139

URL: https://www.frixlaw.com/law-library/cases/7816099

## Case

- **Full name:** Davis v. Kukar, Adm'x
- **Court:** Supreme Court of Arkansas
- **Decided:** May 21, 1962
- **Citations:** 235 Ark. 139; 357 S.W.2d 275; 1962 Ark. LEXIS 548
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** Bohlinger, Johnson
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7816099

## Opinion text

Jim Johnson, Associate Justice (Dissenting). I dissent to the majority opinion for the reason that in my view the principal question presented here is one of fact for the jury. I am convinced that the trial court correctly submitted to the jury the question of re-entry upon the purposes of the master by the servant. The Court’s Instruction No. 3 is as follows:
“You are instructed that even though you should find that the defendant, Joe Nathan Davis, was on an errand for his employer and had, prior to the accident, deviated from the scope of his employment, that this fact is immaterial if you find from a preponderance of the evidence that at the time of the accident the Defendant, Joe Nathan Davis, had resumed the performances of his duties for the defendant, Alice-Sidney Farms, and if you so find from a preponderance of the evidence, then you will find that Joe Nathan Davis was acting; within the scope of his employment at the time of the collision. ’ ’
There can be no question but that appellant’s servant was on a frolic of his own and had departed from the scope of his employment. However, there is ample evidence to show that somewhere in point of time or space appellant’s servant intended to re-enter upon the master’s business. There is testimony to support a conclusion that at some point in the deviation appellant’s servant intended to return the tractor to its accustomed place. (That was what he was instructed to do.) The facts here show that appellant’s servant returned to within less than 45 feet of the point where he had departed from the scope of his employment. His own testimony is undisputed that his intent was to return the tractor in accordance with the instructions of his superior. He testified that he slowed the speed of the tractor for the purpose of making a turn onto the road at which point he had departed on his own business. While in this process of altering the speed of the tractor for the purpose of negotiating the turn, the fatal, injury occurred. What was in the servant’s mind? The servant and the Lord only knows! Surely a trial judge would not be expected to rule, as a matter of law, that the servant was not intent upon returning the tractor to its rightful place. Intent is a matter of proof. The strength or weakness of the proof may or may not allow a trial judge to rule, as a matter of law, that the servant was or was not intent upon fulfilling his mission for his master, however tardy he may be in doing so. Clearly, reasonable men could differ in the case at bar. Since reasonable men could differ, it is most unreasonable to expect a trial judge or this Court on appeal to substitute his or our evaluation of the facts by denying a jury review of those facts.
The majority here has placed too much stress upon this Court’s ruling in Healey v. Cockrill, 133 Ark. 327 , 202 S. W. 229 . The Cochrill case is clearly distinguishable. There the distance, though not great, which was traveled by the servant in going upon his own errand was many times greater than the distance necessary to travel in obeying the instructions of his employer. Here the distance traveled by the servant in going upon his own errand was less than half the distance necessary to travel in obeying the instructions of his employer. The majority goes to great length to reiterate the well known rule that when a servant goes upon a frolic or detour of his own such departure from the course of the master’s business terminates the relationship of master and servant and relieves the master of tort liability for acts and omissions of the servant during such frolic or detour. There can be no quarrel with this rule for it is sound and represents the great preponderance of case law in this country. But the question of re-entry by the servant upon the purposes and business of his master has too long been ignored by this Court. And I take specific issue with the majority’s reliance upon the minority holding that re-entry is not effectuated so as to reéstablish tort liability upon the master until the servant has reached the exact point of departure. This rule is much too narrow and could open the door to collusive and even perjured testimony whereby judgment-proof servants might willingly lift the burden of liability from their more prosperous master and the master’s sureties.
By the very nature of a master-servant relationship it is folly to expect a master to be in constant supervision of each act his servant is to do. When a master sends a servant to accomplish some purpose for the master he thereby incurs certain liabilities of a vicarious nature for the acts and omissions of the servant. If the servant departs from that purpose the master is relieved of liability. But the perplexing problem presented to the courts is to devise some means of determining the approximate point in time or space when the servant re-enters upon the purposes of the master and thereby reestablishes the vicarious liability of the master.
No two cases present the same set of facts. The-facts in one case may be so clear as to allow the trial judge to rule, as a matter of law, that the servant had. or had not re-entered upon the purpose of the master. Conversely, the facts in another case may be such that, reasonable men could differ. There can be no doubt but. the case at bar falls in the second category.
The Court attempted to define re-entry in Cahill v. Bradford, 172 Ark. 69 , 287 S. W. 595 , when it held that it was a question for the jury “. . . whether the-servant was pursuing the general course necessary to-accomplish the purposes involved in his master’s business at the time the injury occurred.”
The facts in the present case are undisputed that the servant was in fact in the process of re-entering the-road at the exact spot from which he had departed whem the collision occurred.
. The question still remains: At what point in time or space does re-entry into the scope of employment occur?
In an effort to answer this difficult question, the American Law Institute’s Restatement of the Law of Agency, 2d, § 237, set out this rule:
“A servant who has temporarily departed in space or time from the scope of employment does not re-enter it until he is again reasonably near the authorized space and time limits and is acting with the intention of serving his master’s business.”
Cases cited in the appendix point clearly to the better view that, as here, on close questions of fact, submission to the jury is proper. (See cases cited in Restatement of the Law, Agency 2d, Appendix, § 237.)
American Law Institute’s Restatement position is clearly supported by other authoritative legal writers. Professors Harper and James in their learned three volume text “The Law of Torts”, Yol. 2, § 26.8 p. 1386, say:
“. . . The simplest case of detour is that of a driver who is employed to drive a truck to deliver his master’s goods to a point 10 miles south of the store, but who drives the loaded truck a short block west of the prescribed direct route to get some cigarettes, intending to return forthwith to the performance of his duty. If he negligently injures plaintiff, during the deviation, the master is generally held liable.
“At the other extreme stands the case where the driver, having delivered the goods, proceeds to take a 50-mile drive further south to see his girl and on his way there injures plaintiff 25 miles south of where he delivered the goods. Here the master is not held.
“Between these extremes exist the greatest confusion and contrariety of opinion. Most courts and commentators agree that no clear line can be drawn although some of the earlier cases are marked by a striving for precise — and arbitrary — tests. For the most part the tendency has been to recognise the importance of a numher of factors, attaching to each a weight that varies with the circumstances — a process that is usually committed to the jury . . (Emphasis supplied.)
Further, see Prosser on Torts, 2d Ed. § 63, p. 353, which states:
“Questions of fact of unusual difficulty arise in determining whether the servant’s conduct is an entire departure from the master’s business, or only a roundabout way of doing it — and likewise, the point at which the departure is terminated, and the servant may be said to have re-entered the employment. This is particularly true in the ‘detour’ cases, where the servant deviates from his route on a personal errand, and later returns to it. Various tests have been proposed. One makes the question turn primarily on the servant’s motive in the deviation, saying that he is within his employment while he intends in part to serve his master, or as soon as he starts to return to his route. Another more generally accepted, looks to the foreseeability of such a deviation, and holds the employer liable only for torts occurring in a ‘zone of risk’ within which the servant might be expected to deviate. Under this view the servant does not re-enter the employment until he is reasonably near the authorized route. . . .”
35 Am. Jur. Master and Servant, § 558, p. 992.
“. . . One of the controverted questions is whether an employee who has turned aside from his employer’s business to accomplish some purpose of his own, and who, after accomplishing his purpose, returns to resume his duties, is, while so returning, engaged in the business of his employer and within the scope of his employment so as to render the employer liable for his tortious conduct. According to the rule of many courts, the employer may be held liable for the torts of his servant which are committed after the personal business of the latter has been concluded and while he is returning to the place where he departed from the designated course. Some courts hold that the mere fact that an employee using the car for his own business or pleasure is returningxtq.- the master’s garage or-.to Ms. employment, .when, the injury occurs, does-not alone^constitute such a resumption of the master’s business as will render the master liable for the injury. The truth is that no hard and fast rule oh the subject either of space or time can be applied. It cannot be said of a servant in charge of Ms master’s vehicle, who temporarily abandons his line of travel for a purpose of his own, that he again becomes a servant only when he reaches a point on his route which he necessarily would have passed had he obeyed his orders.”
It is my view that this Court should follow the great weight of authority in deciding the question of re-entry by the servant upon the purposes and business of his master. The better view, in my opinion, is that on close questions of fact the jury is the proper forum to decide whether a servant has re-entered upon the purposes and business of his master. The case at bar is a clear illustration of the injustice of the narrow view taken by the majority of this court.
For the reasons stated above, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7816099. Public record. Not legal advice.