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JAMES J. FERRELL v. BARBARA E. MARTIN (03/21/80)

filed: March 21, 1980.

JAMES J. FERRELL
v.
BARBARA E. MARTIN, AND CHARLES L. HUSTON, III, AND BARBARA HUSTON, HIS WIFE. APPEAL OF CHARLES L. HUSTON, III AND BARBARA HUSTON, HIS WIFE



No. 581 October Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Chester County, Pennsylvania, Civil Action - Law, at No. 69 July Term, 1975.

COUNSEL

George J. McConchie, Media, for appellants.

Fred T. Cadmus, III, West Chester, for appellee.

Price, Van der Voort and Wieand,*fn* JJ.

Author: Wieand

[ 276 Pa. Super. Page 177]

This appeal presents an issue which is novel and unique. We are asked to determine whether a babysitter exceeds the scope of her employment when she removes the children from their home, puts them in her own vehicle, and takes them to the home of her parents and later to a service station, where her vehicle strikes and injures the attendant. A jury found that the babysitter was acting within the scope of her employment and pursuant to principles of respondeat superior imposed liability upon the absent parent-employer for the service station employee's injuries. A motion for judgment n. o. v. was denied by the court en banc, and this appeal followed.

Charles and Barbara Huston, appellants, engaged Barbara Martin, a college student, to sit with their two small children, ages one and three, while they spent the weekend of September 7 and 8, 1974 at the shore. When the babysitter arrived on Friday evening, she was given detailed instructions concerning the children's meals, naps and bedtime. Sufficient food was provided for all meals during the weekend, and emergency instructions and telephone numbers were given to the sitter.

On Sunday morning, Barbara called her parents, who lived twenty minutes driving time from appellants' home, to obtain permission to bring the children to Sunday dinner. This was readily given, and Barbara put the children in her car and drove to her parents' home. After the dinner dishes had been done, she put the children back in her car for the return trip.

When almost at the Huston home, Barbara observed that her car's gasoline gauge was registering "empty". Therefore,

[ 276 Pa. Super. Page 178]

    she pulled into a Sunoco station at the intersection of Routes 100 and 113 in Chester County. A vehicle was in front of her at the pumps, and an attendant was pumping gas into the rear thereof. Barbara pulled behind the vehicle and stopped. One of the children, she said, threatened to throw a bottle, and she turned around and attempted to quiet the child. Feeling the car move forward, she attempted to apply the brakes. Unfortunately, her foot came in contact with the accelerator and her car shot ahead, striking the attendant who had been working on the car in front.

A master can be held liable for the negligence of a servant only if the negligence occurred while the servant was acting within the course and scope of his or her employment. Mauk v. Wright, 367 F.Supp. 961, 968 (M.D.Pa.1973). "The phrase 'scope of employment' means the extent of (the subject matter of the employment) and denotes the field of action within which one is a servant. The manifestations of the master determine what conduct may be within the scope of employment, since it includes only acts of the kind authorized, done within limits of time and space which approximate those created by the authorization." Restatement, Agency 2d, ยง 228, comment a.

The issue in the instant case must be more narrowly defined. The babysitter's use of her own automobile to take the children to her parents' home for dinner and her subsequent stopping for gasoline require that we examine whether appellants had authorized the babysitter to use a car or in some way had a right to control the manner in which the babysitter operated her vehicle. "To hold a master legally responsible for the act of a servant who is engaged in furthering his master's business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and ...


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