## Facts

- David M. Brill was injured in a nighttime automobile collision in Chicago involving his car, a Checker Taxi Company, Inc. (Checker) cab driven by Checker’s employee Frank McFarland, and a car driven by Joel Davajon.
- The collision occurred around 1:00 a.m. on January 7, 1957, on an icy roadway near Ashland Avenue.
- Davajon’s car was stalled. While McFarland was working as a cab driver, he offered to push Davajon’s car using the cab.
- Davajon offered McFarland one dollar for the assistance.
- The vehicles collided while McFarland was pushing Davajon’s car with the Checker cab; witnesses disputed the exact lane positions and how the impact occurred, but not that the pushing was underway at the time.
- Brill sued Davajon and sued Checker under respondeat superior, claiming McFarland was acting within the scope of his employment.
- At trial, Checker moved for a directed verdict, arguing McFarland was not acting within the scope of employment when he used the cab to push a private car.
- Checker presented evidence (including testimony from its president) that cab drivers were instructed not to use cabs for any purpose other than transporting passengers for hire and were forbidden from pushing other vehicles.
- McFarland admitted he violated those instructions.
- The trial court denied Checker’s directed-verdict motion, the case went to the jury, and judgment was entered against Checker on the verdict. Checker appealed; Davajon was not part of the appeal.

## Issues

1. Whether Checker could be held vicariously liable under respondeat superior when its driver used the cab to push a stalled private car for a personal payment, contrary to explicit company instructions.
2. Whether the presumption that the driver of an owner’s vehicle acts as the owner’s agent within the scope of employment was rebutted by Checker’s uncontradicted evidence of a prohibited, personal errand.
3. Whether the trial court should have directed a verdict for Checker on the scope-of-employment question.

## Decision

- The Appellate Court of Illinois reversed the judgment against Checker.
- The court held that, on this record, McFarland was not acting within the scope of his employment when pushing Davajon’s stalled car for a personal fee.
- The court concluded the ownership-and-employment presumption of agency was overcome by Checker’s unrebutted evidence that McFarland’s conduct was a personal undertaking and was specifically forbidden.
- The court ruled that the agency/scope question should not have been submitted to the jury and that Checker was entitled to a directed verdict.

## Legal Principles

- Proof that a defendant owned the vehicle and that the driver was the defendant’s employee gives rise to a prima facie, rebuttable presumption that the driver acted as the owner’s agent within the scope of employment.
- The presumption does not persist when the owner presents clear, uncontradicted evidence that the driver was acting outside the scope of employment at the time of the occurrence.
- Respondeat superior requires that the employee’s act be in the course of employment and in furtherance of the employer’s business; a substantial departure for the employee’s own purpose, especially for personal compensation, is outside the scope.
- Violation of express employer instructions is strong evidence that the employee was not acting for the employer, particularly where there is no proof the employer knew of, tolerated, or benefited from the prohibited conduct.
- When the evidence permits only one conclusion on scope of employment, the court should decide the issue as a matter of law and direct a verdict.

## Conclusion

Because Checker presented unrebutted evidence that McFarland used the cab to push a stalled private car for a one-dollar side payment in direct violation of company rules, the presumption of agency arising from vehicle ownership was defeated; McFarland’s conduct was outside the scope of employment, so the judgment against Checker was reversed and a directed verdict should have been entered for Checker.


Brill v. Davajon, 51 Ill.App.2d 445, 201 N.E.2d 253 (1964)