100 Wash. 392 | Wash. | 1918
The respondent, a boy fourteen years of age, by his guardian ad litem, alleged and recovered damages for personal injuries sustained by him in a collision between himself and one Brown, an employee of appellant, while Brown was operating a motorcycle belonging to appellant. Appellant, by its answer, admitted ownership of the motorcycle, and alleged, by way of affirmative defense, that, at the time of the collision between Brown and respondent, Brown was not engaged in the business of appellant or performing any duties for appellant, hut was using appellant’s motorcycle for his own convenience and pleasure after work
At the conclusion of respondent’s evidence, he had made a prima facie case, and it was then incumbent upon appellant, by competent evidence, to rebut the evidence and the presumption of fact raised by the admission of ownership of the motorcycle.
No exceptions were taken to the instructions of the court. At the close of all the evidence, appellant moved for a directed verdict, which was denied, and after verdict, moved for a judgment notwithstanding the verdict, which was also denied, and judgment was entered upon the verdict.
The facts as to the negligence of Brown, the motorcycle rider, and the contributory negligence of the respondent were in conflict, and were resolved by the-jury in favor of respondent.
The uncontradicted facts in the case hearing upon the question of the liability of appellant under its affirmative answer are as follows: On November 1,
1916, and for some time prior thereto, appellant maintained a stock room in which it stored supplies for its schools. One Moseley was the stock keeper and in direct charge of the stock room. He employed two men, Hemming and Brown, to do the manual work in the stock room. The duty of Brown was to deliver parcels on a motorcycle to different school buildings in the city, and the duty of Hemming was to check in and out all supplies and fill orders. Brown was hired by the day, and his hours were from eight in the morning until five at night. There was a rule of the school hoard in force in the stock department that no motor vehicle should he used for any other purpose than school district purposes, with which rule Brown was familiar at the time of the accident. It was Brown’s duty to close
None of this evidence was in any way contradicted by any evidence on behalf of respondent. Respondent contended in oral argument, however, that the jury was not bound by the testimony of the officers of appellant or of Brown, and that they were interested witnesses. While the officers of the school district were interested witnesses in the ordinary acceptation, Brown was not. While he was an employee of the appellant, he was not a party to the suit and was in no way interested in the outcome. He was not impeached as to character, and his testimony was not impeached nor attacked as to credibility.
The owner of a motor vehicle who was not present at the infliction of the injury cannot be held liable, except it be shown that the person in charge was not only agent of the owner, but was, at the time, engaged in the business of his master.
While authority to use a motor vehicle in exceptional ways might be implied by circumstances which would warrant the inference that the employer knew of such uses, the commitment of such a vehicle to the custody and control of an employee for the special pur
It is well settled by all authorities that the act complained of must have been done while the servant was engaged in doing some act under authority from his master; not that, while engaged in the act, he is employed in the master’s business, but the act must have been in the furtherance of the master’s business and such as may be fairly said to have been so expressly or impliedly authorized by the master. Wood, Master & Servant (2d ed.) 307; McQueen v. People’s Store Co., 97 Wash. 387, 166 Pac. 626; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 125 Am. St. 915, 14 L. R. A. (N. S.) 216.
By the uncontradicted evidence, Brown had ceased his day’s work, and was not in the employ or under the control of appellant until he resumed work the next day at eight o’clock. He was not, then, in the service of appellant at the time of the accident. Bursch v. Greenough Brothers Co., 79 Wash. 109, 139 Pac. 870; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586; Baird v. Northern Pac. R. Co., 78 Wash. 67, 138 Pac. 325.
Eespondent relies largely upon the cases of Kneff v. Sanford, 63 Wash. 503, 115 Pac. 1040, and Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. 519. Those cases involved disputed questions of fact which were properly submitted to the jury. This case does not.
The presumption growing out of a prima facie case, established by proof of the injury, and the ownership of the motorcycle, and the use thereof by an employee of the owner of the motorcycle, subsisted only so long
Upon the undisputed and competent evidence as to the motorcycle being in Brown’s possession at the time of the accident without authority, and of his not being at the time acting in the scope of his employment in any capacity, reasonable minds could not differ, and there was no evidence, or inference from evidence, upon which the jury was justified in holding appellant liable.
The judgment is reversed, and the cause dismissed.