Firemen's Fund Insurance v. Schreiber

150 Wis. 42 | Wis. | 1912

Lead Opinion

The following opinions were filed April 3, 1912:

Maeshall, J.

At first impulse one might say that, in the •circumstances of this case, the plaintiff ought to recover. A hasty decision might so lead. That is evident from the summary manner of the disposition below. However, upon reflection it would occur, as it seems, that the case is to be ruled by settled principles, not by mere impulsive thought as to what is right and what is wrong. Further thought and it would occur that the law as to such a situation must have been settled along reasonable and practicable lines, consistent with the necessary relations of members of a community to each other.

There must he masters and servants. One cannot do everything directly. He must needs employ assistants. That is expected by every one to whom he owes a duty, contractual or otherwise,,as regards safety of persons or property. How far does that duty extend ? Does it extend so far as to make every act of the servant while in the employ of the master, whether ■done by actual or implied direction or assent of the master,— for the servant’s personal negligences and torts attributable to bis own purpose, as well as those occurring by excessiveness in doing wbat be is employed to do, imputable to tbe master ? If so, tben tbe master must to all intents and purposes, be an insurer against conduct of bis servant and under a very great risk from wbicb be bas no practicable way of escape by any degree of care be can personally exercise. Tbe only way of escape would be to restrict bis activities to bis personal capacity. Tbe learned trial court evidently went to tbe fullest extent of liability we bave indicated.

Tbe case presents these aspects: (1) Wbat was the real scope of Elynn’s employment? (2) Did it effectually terminate when be left the garage for bis lunch so that when be returned with bis friend, be did so rather as a stranger than an employee, though having opportunity by reason of bis service to enter tbe garage? (3) Was be actually in tbe service of tbe defendant in charge of tbe garage at tbe time be took out tbe machine ? That be had no authority from tbe master to take it out; that bis act was not, even remotely, connected with anything be was authorized to do; that it was something neither authorized nor within reasonable anticipation from tbe standpoint of tbe master; and that it was something any other lawless person might as well bave done bad be only possessed tbe easy means of entering tbe garage, — are not in dispute.

As we proceed with tbe case, it will be observed that whichever of tbe suggested situations may be tbe real one as to tbe facts, tbe legal result is substantially the same. It may be that tbe learned court below did not think otherwise; but whether a right result was reached is another thing. It may bave been thought that tbe fact of Elynn having rightful access to tbe garage, regardless of any actual wrongful conduct on tbe part of appellant either in employing or retaining him, was sufficient. If not so thought, tben tbe case went upon tbe idea of absolute responsibility for tbe conduct of Elynn while be was in charge of tbe garage. Tbe vital contest below on tbe facts, as counsel viewed tbe matter, seems to have been as to whether Elynn was in charge of the garage when he took out the machine, or had practically left for the night and returned as a stranger, merely having means of making an entry without being a trespasser. The situation is presented in much the same way here. The real vital point in the matter, as we shall see, did not'receive much, if any, attention.

Erom the foregoing, familiar and elementary as the law is in general, applicable to the responsibility of a master for the acts-of his servants, either as regards the subject of a bailment for hire, as in this case, or otherwise, it seems best to refer thereto at some length. A branch of the law, however familiar, as it may seem to some, which has led to such divergence of thought between counsel and court, as here, may well be treated with some particularity.

In the first place, the liability of appellant, whatever be the choice of aspects as to the facts, as before indicated, rests on breach of mere contract or other duty to respondent. Therefore the inquiry must first be, What are those duties ?

The duties referred to are the same in case of a bailment, as here, as in that of any other bailment for hire, except in such special relations as characterize the business of innkeepers, common carriers, and possibly some other vocations, which, in the whole, form a class quite apart from the ordinary. Berry, Law of Automobiles, § 207; Babbitt, Law of Motor Vehicles, § 639. A bailee for hire owes to the bailor the duty to exercise ordinary care as regards the- subject of the bailment. That is all. Edwards, Bailments (3d ed.) § 4; 3 Am. & Eng. Ency. of Law (2d ed.) 747; Jones, Bailments, 86. Such is the rule it is said “by the harmonious consent of nations.”

All agree that the ordinary bailee is in no sense an insurer. Story, Bailments (9th ed.) §§ 25-32; Schouler, Bailments, 25; Berry and Babbitt, supra.

The text on the subject under discussion is without substantial variation in tbe many standard works at band. It is quite as old, at least, as English law. It is supported by numerous adjudications, including our own. Dimmick v. M. & St. P. R. Co. 18 Wis. 411; Savage v. Davis, 18 Wis. 608; Stacy v. Knickerbocker Ice Co. 84 Wis. 614, 54 N. W. 1091. A bailee for hire, said the court in Dimmick v. M. & St. P. R. Co., “should exercise that care which men of common prudence generally bestow upon their own property similarly situated, and is only liable in case of failure to perforin this duty.” That rule is found stated as often as any in the law, emphasis being frequently put upon the fact that a bailee is not an insurer.

Thus it is of the utmost importance here to keep in mind, absence from a contract of bailment of any element of insurance, presence of the element of responsibility for ordinary care, and presence of the element of consent, in the absence of any special agreement to the contrary, to use the usual means of executing the contract of bailment, particularly to do it by the employment of others and without occupying the status of an assurer for their conduct. Ordinary care as to them is the same as in the selection and retention of servants to perform any other service. There is absolutely no difference in principle or authority, so far as regards wrongful acts of 'the servants being attributable directly to fault of the master. Ordinary care in the selection and retention of employees, ordinary care on the part of employees in doing the things they are employed to do, ordinary care at all points, no more and no less, is the standard contracted for in the ordinary bailment for compensation as in this case. No exceptions are found in the law. It is stated in the books, old and new, that the bailee can only be held responsible for such care. That includes, imputable fault, — wrongful acts within the scope of the employee’s employment. This last element is of controlling significance here as we shall see.

Though it will be found stated in theibooks tbat the bailee can only be held responsible for the use of ordinary care and common prudence in the preservation of property bailed, cases may be found supporting the view that when the bailee intrusts bis duties to an employee, thus affording the latter opportunity to misuse the subject of the bailment, the act of the servant in so doing is imputable to the master, as was thought below in this case. Eesearch, however, will readily disclose that such adjudications are few, incidental, inconsiderate, and have 'been overruled whenever directly and vigorously challenged. Several illustrations of this are found in the English reports to which American courts have commonly resorted for guidance on this subject.

. Eor example of the foregoing :In Sleath v. Wilson, 9 Car. & P. 607, Erskine, J., said:

“But whenever the master has intrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it. . . . The master, in such a case, will be liable, and the ground is, that he has put it in the servant’s power to mismanage the carriage by intrusting him with it.”

That is the logic upon which the judgment here rests, in one aspect of the matter.

In Storey v. Ashton, L. R. 4 Q. B. 47 6, the quoted language was condemned as out of harmony with settled law. The contrary doctrine applied in Mitchell v. Crassweller, 13 C. B. 237, was approved, the court saying:

“The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment.”

The doctrine above stated is found universally adopted in England and this country. It is "stated by text-writers as not admitting of any exceptions as regards ordinary bailments. This excerpt from Edwards on Bailments (3d ed.) § 389, is a good illustrative example and will be found quoted and approved in many adjudications:

“Tbe general rule is now well settled that tbe master is liable for all tbe acts of bis servant wbicb are witbin tbe general scope of bis employment and wbicb are done while engaged in bis master’s business and with a view to tbe furtherance of that business and tbe master’s interests, whether such acts are done negligently, wantonly, or even wilfully. But if tbe servant goes outside bis employment, and, without regard to bis service, acting with malice or in order -to effect some purpose of bis own, wantonly causes damage to another, tbe master is not liable. . . . Tbe rule is perfectly plain and well settled; and tbe only difficulty in its application is generally one of fact, namely this, to ascertain tbe true relation in which tbe parties stood to each other.”

■ That is, as explained, whether tbe act was done, not witbin tbe course or period, but witbin tbe scope of tbe employment.

Eor another example we quote from Mecbem on Agency, §131:

“If tbe agent or servant, therefore, steps outside of bis employment to do some act for himself, not connected with bis principal’s business, tbe latter will not be liable for tbe agent’s negligence while so engaged. Beyond tbe scope of bis employment tbe agent or servant is as much a stranger to bis prinei-pal as though be were a third person.”

And again from Story on Bailments (9th ed.) § 402, as to tbe precise relations under consideration:

“Tbe master is not universally liable for tbe misdeeds of bis servants; and, therefore, we are to distinguish whether tbe act complained of has been done in tbe service of tbe master, or in obedience to bis orders, or not . . . ,” — done in tbe service of tbe master, as tbe author shows, — for tbe purpose of serving tbe master. “Tbe master is not responsible for any wilful or malicious injury done by bis servant” unless done “in tbe master’s service in tbe course of bis employment.”

That is, as explained by illustrations, in doing tbe thing he was employed to do.

The doctrine thus stated, it will be observed, applies particularly to the general contract of bailment where the employer uses servants in the execution of the agreement. It is general in all situations where the relation of master and servant exists. It has been repeatedly sanctioned and applied in this court,- — in the whole covering a variety of situations. Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477; Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424; Cobb v. Simon, 119 Wis. 597, 97 N. W. 276; Schultz v. La Crosse City R. Co. 133 Wis. 420, 113 N. W. 658; Topolewski v. Plankinton P. Co. 143 Wis. 52, 126 N. W. 554.

Many authorities bearing on the subject are found elsewhere, and among them instances involving substantially similar situations as the one before us, — so far identical as to leave no room for distinguishment on principle. Among them are the following: White v. Comm. Nat. Bank, 4 Brewst. 234; Sanderson v. Collins, 90 L. T. Rep. 243; Ellis v. Turner, 8 Term Rep. 531; Coleman v. Riches, 16 C. B. 104; Rayner v. Mitchell, L. R. 2 C. P. Div. 357; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Foster v. Essex Bank, 17 Mass. 479; Adams v. Cost, 62 Md. 264; Maddox v. Brown, 71 Me., 432; Merchants Nat. Bank v. Guilmartin, 88 Ga. 797, 15 S. E. 831; Cavanagh v. Dinsmore, 12 Hun, 465; Stone v. Hills, 45 Conn. 44; Evans v. Dyke A. Co. 121 Mo. App. 266, 101 S. W. 1132.

Those cases, and many others, representing all jurisdictions which might be cited, show that the test as to whether a servant in doing a wrongful act was in the employ of the master, and as such in charge of a bank, or a warehouse or repair shop, garage, or handling his master’s team, or performing other service in which the master, in case of the act being his own, would be responsible for misconduct to another injured in bis person or property by the act of the servant, is whether the particular act was within the scope of the employment. It matters not whether the master authorized the particular wrongful acts, if the unauthorized matter was merely a wrong way of doing the thing the servant was employed to do, — that is, was in pursuit of the employment itself, — -within the scope of it, the master is liable; but if it was something entirely outside of such scope, though done within the period of employment and while actually employed, and .capacity to do it was obtained through -the service, the master is not liable.

A leading ease is Foster v. Essex Bank, supra. There the whole subject is discussed at length, many English authorities being cited and reviewed. The general effect is that if the servant of a banking corporation in charge of the bank, — one employed and retained with due care, negligently or fraudulently causes a customer to lose a special deposit left in care of the bank, the corporation is not liable. Finucane v. Small, 1 Esp. 315, was cited and approved. There a person stored his trunk and contents with another for hire. The latter’s servant stole the contents. Held that the master was not liable. Summing up the result of the authorities the court said, in the Foster Case:

“To make the master liable for any act of fraud or negligence done by his servant, the act must be done in the course of his employment; and if he step outside of it to do a wrong, either fraudulently or feloniously, towards another, the master is no more answerable than any stranger. The cases of innkeepers, common carriers, and perhaps shipmasters or seamen, when goods are in bailment, are exceptions on grounds of public policy.”

Merchants Nat. Bank v. Guilmartin, supra, is another case involving the question of whether a bank is liable for the theft of a special deposit by its cashier in charge. True, this case, as the former and each of several others cited therein of similar import, involved a bailment without compensation, where the degree of care contracted for was only such, as a bailee uses in bis own business. But they are directly to the point that, in such extreme cases as the theft of a deposit, the question of the bailee’s liability turned wholly on whether he exercised the proper degree of care or not, — such degree, as to whether ordinary or something less, being determinable on whether the bailment was for compensation or not. The idea of absolute responsibility for the act of the servant, as if done by the master, or liability at all, except based on some fault as regards trusting the bailment to the control of the servant; imputable fault, — a wrong committed by the servant by actual or constructive assent of the master, was repudiated. The mere custodianship as distinguished from bailment for compensation, was not recognized as varying the rule that a master is not liable, absolutely, for the act of his servant. In any event, the court held, for liability, the wrongful act must be attributable to some negligence of the master, or some negligence or some other fault of the servant in doing the act the master employed him to do. We quote:

“A master is not liable for the servant’s fraud or wilful tort unless he is acting in the conduct of his business, that is at his actual or implied instance. The servant must, in the wrongful act, be acting or intending to act in behalf of the master and in the course of his employment.”

Evans v. Dyke A. Co., supra, is interesting on the subject under discussion. Plaintiff, owner of an automobile, by arrangement with B., the defendant, proprietor of a garage, sent 0., his brother, with the machine to the garage for sale, lie found plaintiff’s servant, E„ in charge. E., in the absence of the proprietor, had authority to receive machines and look after the business. He directed 0. to run the machine into the garage. After some conversation respecting the sale price, E. said the machine could readily be sold; that the garage would not be open the next day, Sunday, but as they lived in the same neighborhood, if he, C., would take the machine back he, E., would call for it the next morning and show it to a proposed customer. That was agreed to. E. called accordingly. The machine was delivered to him and received, ostensibly, for the employer, B. Pursuant to his agency employment, E. showed the machine to a prospective purchaser, and then, instead of returning it to A. or taking it to the garage, went on a pleasure trip during which it was wrecked. The case was treated in various aspects, one upon the theory that E. actually received the machine as agent for B., and while having it as such, with the duty to return it to A. or take it to the garage, after displaying it to the prospective purchaser, turned aside and went on the pleasure ride. In that aspect, the court thus discoursed in general effect: A master is responsible for the negligent and wilful tort of his servant only when committed in the sphere of the servant’s duty and while acting in the master’s behalf. On principle and authority the automobile company is not liable for the negligence of its agent while he was using the machine for a purpose wholly detached from his employment. The agent’s trip had no relation to his service as an employee of the company, and the latter’s immunity from liability is settled by many decisions given on similar facts.

One more illustrative case, out of the many at hand, will certainly suffice to emphasize the text quoted from Edwards on Bailments, and the declaration here, that the master’s liability for acts of his servants, is governed by precisely the same principle as was declared in Cobb v. Simon, 119 Wis. 597, 97 N. W. 276, and other cases decided by this court.

In Sanderson v. Collins, 90 L. T. Rep. 243, the facts were much like those in Evans v. Dyke A. Co., supra. A vehicle, called a dog cart, was intrusted to defendant for his temporary use for a consideration. When not in service it was kept in his coach house under lock and key and the key was usually in the hall of his dwelling house. He took the cart out for a drive. Upon the return it was the servant’s duty to put it in the eoacb bouse in tbe secure manner indicated.. Either he failed to do so, or after performing his duty removed the cart to the outside without the master’s knowledge or consent, and then, wrongfully and tortiously, went for a pleasure ride and damaged the vehicle. The master was held liable for the act of the servant in the trial court, though it was decided that the servant’s act was not within the scope of his authority. The recovery was placed on about the ground upon which the judgment here complained of, seemingly, was rendered. On appeal, the decision was condemned because of there being no liability for the act of a servant while entirely aside from his authority, as distinguished from a wrong committed in doing the very act he is authorized to do. Said the writer of the leading of three harmonious opinions:

“It seems to me that the first thing is to clear one’s mind as to the facts of the relations existing beween the defendant and his servant. The obligation of the defendant as bailee was only to take reasonable care of the thing bailed, and he is bound in that respect for an act of his servant done in the course of his employment. But his obligation does not extend to cover the acts of his servant beyond the scope of his authority. If the thing had been taken 'by a burglar or a stranger without negligence on the part of defendant, he would not be liable. Here the taking was not by a burglar or a stranger, but it was the act of a person as much outside any authority conferred on him as if it had been done by a stranger. The defendant had employed a competent servant and given him proper directions. The defendant was not guilty of any negligence. Therefore thez’e was no want of care on the part of the defendant. I think: he is not liable.”

BoMeb, L. J., added, substantially: There was no obligation of insurable safety of the dog cart. Defendant was not, himself, guilty of any negligence. The servant was not acting in the line of his employment by defendant in taking out the dog cart. That being so, the latter is not liable.

It will be observed that, in each of the cases involving the subject under discussion, decided by this court, save one which we will refer to, specially, later, liability of the master turned on whether the act of the servant was a mere wrongful performance of what he was employed to do, and so within the scope of his authority, within the cited illustrations, or whether it was wholly for a purpose of his own, though done during the period of employment and of his being on duty.

In Cobb v. Simon, 119 Wis. 597, 97 N. W. 276, the question was whether the floorwalker in defendant’s store did the act within the scope of his employment to discover and prevent shoplifting, or did it to extort money from the customer. Eor failure to observe the suggested test of liability and error in supposing that the rule in such cases as Cracker v. C. & N. W. R. Co. 36 Wis. 657, applied, the judgment below was reversed.

In Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424, the question was whether the servant merely went too far in executing his commission to discover persons guilty of abusing or stealing from cars, or, in personal rev'enge, arrested, unlawfully, and abused plaintiff. The instructions were criticised, but, as a whole, found without harmful error because the jury were emphatically informed that defendant was not liable unless the servant’s wrongful act was committed in doing, in general, the very thing he was employed to do.

In Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304, the question was whether the bartender assaulted plaintiff for revenge, or to coerce him into paying a bar bill owing to the master. The court said that only in case of the latter was the master liable; that liability depended upon the principle of respondeat superior; and that Craker v. C. & N. W. R. Co. 36 Wis. 657, and Fick v. C. & N. W. R. Co. 68 Wis. 469, 32 N. W. 527, ruled by the special duty of a carrier of passengers to protect them, had no application.

In Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477, the question was whether the son, who was out with a gun by his father’s permission, was on a hunting expedition for personal pleasure, or in the employ of his father to protect the farm from crows. If be bad left tbe farm and so gone beyond tbe scope of bis authority, and perpetrated tbe negligent act in doing a thing be was not, upon any theory, employed to do, then it was said, tbe father was not liable.

In Schultz v. La Crosse City R. Co. 133 Wis. 420, 113 N. W. 658, tbe question was whether tbe defendant’s servant assaulted tbe boy in performance of bis duty to protect its cars. Tbe servant bad such protection within tbe scope -of bis employment at tbe time of tbe assault. Tbe test of liability of tbe master applied below and approved here was whether tbe assault was committed for tbe purpose of protecting tbe property. Other cases might be referred to of tbe same tenor.

Craker v. C. & N. W. R. Co. 36 Wis. 657, is cited and quoted from by counsel for respondent here at considerable length. If tbe rule thereof, to tbe limit, were applicable to such cases as this, counsel’s confidence in tbe judgment would be well grounded. Doubtless tbe learned trial court was guided by tbe strict rule. Eor tbe particular class of situations to which tbe case belongs, tbe doctrine that tbe wrongful act must be strictly within tbe scope of tbe servant’s authority to render tbe master liable, was repudiated, it being held that commission in tbe course of tbe employment is sufficient. That is, it was held that a railway company is practically an insurer of tbe personal security of passengers on its trains against wrongful acts of its employees. That such doctrine-was rather novel, even as to tbe particular situations, must be confessed. As indicated-in Bergman v. Hendrickson, sufra, it did not go upon tbe doctrine of respondeat superior. It has not been extended beyond tbe particular field, nor was there any significant attempt to do so till Cobb v. Simon, supra, where it was followed in tbe court below as regards tbe duty of a store proprietor to bis patrons.' Tbe judgment was reversed, this court saying:

Tbe rule applied below would be proper in case of an assault by a railroad train brakeman upon a passenger as in Craker v. C. & N. W. R. Co. “It has not, however, been applied to a merchant in bis relations to customers” to whom be owes only tbe duty of ordinary care for their safety. Therefore it was error to instruct the jury generally that “a master is liable for a wrong done by his servant, whether through negligence or malice of the latter, in the course of an employment in which the servant is engaged to perform a duty which the master owes to the person injured,” — wrong because the language was susceptible of the meaning that the test of liability was whether the wrongful act was done within the mere course or period of the servant’s authority. Whereas the true rule is whether it was done within the scope of the servant’s authority, a wrong in doing the very act the servant is employed to do, — not one done by stepping aside from the scope thereof, “for the accomplishment of his own purposes,” — “not whether done during the existence of the employment but whether done in the prosecution of the master’s business.”

How very unlike this is the drastic rule of the Craker Case, appropriate though that may be in its proper field! While in some text-books the emphatic language of Ryait, C. J., in such case is referred to with more or less approval, the rule, in general, universally maintained is, as before indicated.

Thus in Meehem on Agency, § 141, after reviewing the Oraher Oase, it was said:

“It does not, by any means, follow from this rule that the principal is liable for any wilful and malicious act of his agent, but only for those which are committed by the agent while acting in the course of his employment and within the scope of his authority. At the same time it is not to be inferred that the principal’s liability depends upon whether he has or has not intentionally authorized the doing of the wrongful act. . . . But what is meant, is, that if the agent, while engaged in doing something he is authorized to do, and while acting in the execution of his authority,” commits the wrong, the master is liable. But if “the agent steps aside from his employment to do some act having no connection with the principal’s business, and to which he is inspired by pure personal and private malice or ill will, the master is not liable.”

It should be noted that the author, while adding to the term “'course of his employment” the term “and within the scope of bis authority,” did not appreciate that without such addition the former term had been used to characterize a liability, regardless of the ordinary conception of the doctrine of re-spondeat superior, — one applicable to a special class of cases, and that the two terms joined as one, or the latter used by itself, accurately expresses the general rule dependable on such doctrine, as this court has, at least twice before, pointed out.

In connection with the foregoing it must be appreciated that the element of stepping aside, commonly found in the rule, does not require any particular period of cessation from the business or going away from the place thereof. A mental attitude of stepping aside, even momentarily, — turning the attention to the accomplishment of a purpose solely outside of that of promoting the object of the employment, effectually breaks the connection between the servant and the master, — ■ leaves no “nexus’5 between them, as said in the authorities, vital to the latter’s liability.

Perhaps far too much labor has already been spent upon this case but we hesitate to lay it down, notwithstanding the principles governing it seem few, plain, and to have been many times declared and applied here, since the particular situation is one that in modern life with its temptations, inviting opportunities to transgress, is liable frequently to arise. The peculiarity of conditions in prcesenti, gives no warrant for the court to change the ordinary rules established, in effect, as the written law, governing the relation between bailee and bailor, or either, to third persons. A bailment is a bailment whether the subject be a package delivered to a bank for safe keeping, or a horse delivered to a livery-stable keeper for care, a vehicle delivered to a repairer for his trade, or an automobile delivered to a garage keeper to be stabled. An old principle is merely to be extended to new situations. That is all. It has ample unapplied capacity of expansion to satisfy all exigencies of the general class which called it into existence. It cannot be properly expanded to the extent of sacrificing its essential foundation element, notwithstanding the new and significant opportunities for mischief. The owner of an automobile can easily protect himself, in greater degree, by special contract if he sees fit, or the legislature can make a new rule to fit the new phase of things.

We have thought to treat the case upon principle, more than authority, without searching widely for cases of the particular kind. It were better to adhere, consistently, to a code of principles than to strive to build up or promote one of mere case law. If we were to go into the latter field there would be no dearth of precedents, at least, quite like Sanderson v. Collins (90 L. T. Rep. 243) and Evans v. Dyke A. Co. (121 Mo. App. 266, 101 S. W. 1132), already cited.

That the liability of a garage keeper for the safety of an automobile intrusted to him, is the same as the keeper of an ordinary stable for a horse or carriage likewise intrusted, and that he is, in no sense, an insurer, is commonly declared as, on principle, must be the case. Babbitt, Law of Motor Vehicles, §§ 637-641; Berry, Law of Automobiles, § 207 and cases cited, particularly Ford M. Co. v. Osburn, 140 Ill. App. 633.

The mist surrounding this case readily lifts when it is examined in the light of the foregoing, and the reál logic of the master’s liability for acts of his servant is appreciated. There is a duty. It requires exercise of ordinary care. As that may be done directly or indirectly, so it may be breached directly or indirectly. As to the latter, there can be no imputable fault, and hence no liability, respondeat superior, outside the scope of the delegated duty. The torts and negli-gences of an employee in doing the very thing he is directed or employed to do, must be seen apart frUm those which are entirely separate therefrom. As to the latter, the relation of master and servant does not exist. Mere opportunity, as we have seen by the numerous authorities cited, afforded by the relation, of master and servant, makes-no difference, so long as there is no negligence in conferring such, opportunity. Nor is a situation where the servant is in charge, as in this instance, differentiated from where he stands in any other relation, in general, to third persons, creating competency to charge his master with his negligence or other wrong doing.

Care is required to appreciate the meaning of “scope of the employment.” It is not, as said by the Minnesota court in Slater v. Advance T. Co. 97 Minn. 305, 107 N. W. 133, “synonymous with during the period of the employment.” But, as indicated in Schultz v. La Crosse City R. Co. 133 Wis. 420, 113 N. W. 658, and Cobb v. Simon, 119 Wis. 597, 97 N. W. 276, it signifies “in the actual prosecution of the master’s business.” Eor example, — if it were the duty of a night man at a garage to deliver a customer’s machine to him at his house upon call therefor, and in responding to such a call, he carelessly or wantonly injured the machine, the wrong would be one within the scope of his employment. The taking out of the machine contrary to the orders of both master and customer, and for a purely personal purpose, is another thing.

Now wherein was there any breach of duty of appellant shown here ? The servant, so far as appellant had any reason to suppose, was a proper person to -leave in charge of the garage. There was no claim made to the contrary nor any evidence in that regard. The servant did not take the machine out under any authority from the appellant, but in most flagrant violation of it. He would not have exceeded his authority any more certainly had he stolen the subject of the bailment, as in some of the cases cited, or destroyed it in the garage. He was not pretending to act for appellant in any respect, but acted solely for himself. As said, in effect, by Parker, C. J., in Foster v. Essex Bank, 17 Mass. 479: He cannot be considered, in any view, as having acted within the scope of his employment when he committed the villainy and the defendant is no more answerable for such act than he would be bad tbe servant stolen plaintiffs pocketbook while be was in tbe garage to take out bis machine. It being clear that be bad no authority whatever to take out tbe machine, in tbe words of Yellott, J., in Adams v. Cost, 62 Md. 264, 271, “by no process of ratiocination could it be made demonstrable that be was acting under tbe authority of tbe defendants. On tbe contrary, we are irresistibly and logically led to tbe conclusion that be was then acting independently of that authority, and consequently not within tbe limits of bis assigned employment as tbe defendants’ servant.” He wilfully, knowingly did tbe wrongful act for purposes entirely foreign to bis employment. He was not hired to do any such act. How then can it be said that it was done within tbe scope of bis employment %

Tbe result of tbe foregoing renders it immaterial whether Elynn practically left bis service for tbe day and then returned as a stranger and took out tbe machine. It seems to be conceded that, if such were tbe fact, tbe appellant is not responsible under tbe extreme rule of Craker v. C. & N. W. R. Co. 36 Wis. 657. Tbe learned court perhaps considered that Elynn merely absented himself from tbe garage for a brief period to get a lunch, intending to return and permanently close tbe place for tbe night. Tbe indications are pretty plain that be was through for tbe day when be went for bis lunch; that be bad no thought of returning for further service, but merely to obtain bis coat; that while so away be met bis friend and together they conceived tbe plan of re-entering tbe place, primarily, if not solely, for tbe purpose of committing tbe trespass. Quite likely tbe thought of getting tbe coat occurred because of tbe necessity or convenience of it in view of tbe contemplated expedition. That demonstrates bow very foreign such trespass was from tbe scope of Elynn’s employment. While it would make no difference with tbe result, as we view tbe case, we are inclined to bold that Flynn returned to tbe garage for tbe machine, — for an unlawful purpose, formed after be bad substantially quit service for tbe day, and so bis act was outside tbe scope of bis employment, even from respondent’s viewpoint. Tbe mere fact that be possessed tbe means of re-entering tbe gárage, would not make tbe entry witbin tbe scope of bis employment, if tbe purpose of sucb entry was to commit tbe trespass, or even to get tbe coat, especially if that was merely incidental to tbe scheme to commit tbe wrong.

Little time need be spent witb tbe contention of appellant that the scope of Elynn’s employment was confined to washing machines. He was tbe night man at tbe garage. That is plain. One of tbe duties of night men, evidently, is to wash machines. Necessarily, bis duties required him to prevent unauthorized interference with machines, to open aind close tbe place as necessary to accommodate customers in taking out or putting them up, and to assist if necessary. Tbe difficulty was that be violated tbe very purpose of bis employment instead of acting witbin tbe scope of it, in committing tbe trespass. It is bard to conceive a more plain case of stepping completely aside from tbe scope of one’s employment, witbin tbe rule stated, than occurred in this case.

By the Gowt. — Tbe judgment is reversed, and tbe cause remanded witb directions to dismiss tbe case witb costs.

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Dissenting Opinion

(dissenting). Although tbe opinion of tbe court has been extended to' great length in tbe discussion of authorities, it appears to me that tbe principles involved are few and simple. This seems to be conceded in tbe opinion. Tbe court says:

“Perhaps far too much labor has already been spent upon this case but we hesitate to lay it down, notwithstanding tbe principles governing it seem few, plain, and to have been many times declared and applied here. . . .”

Tbe defendant was a bailee for hire, and of course tbe ordinary rules of law relative to bailees are applicable, hence no extended citation of authorities would seem necessary. The defendant under the contract for hire was bound at least to use ordinary care to protect the automobile from use by parties other than the owner or persons authorized by the owner to use it. Elynn was the agent of the-defendant, charged with the duty of guarding and protecting the subject of bailment, namely, the automobile. At first blush it would strike one as a remarkable doctrine of law which would justify a bailee, who had contracted for hire to care for and protect the property of his bailor, to seek escape from liability because his agent to whom he had intrusted such duty had destroyed the property while charged with the duty his master had delegated to him of protecting it. This seems to be the situation which the case before us presents. It is not denied but that the defendant under his contract with the owner of the automobile owed him the duty of having at the garage when open some one to take care of the car and prevent it from being taken out except at the request of the owner, and to guard it from use by unauthorized persons. At the time in question such duties were intrusted by defendant to Elynn. It is well established law that the defendant here cannot escape liability on the ground of failure of the agent, Elynn, to perform his duty, whether such failure was wilful or the result of negligence or malice. Craker v. C. & N. W. R. Co. 36 Wis. 657; Stranahan Bros. C. Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634; Wharton, Agency & Agents, §§ 487, 543; Bryant v. Rich, 106 Mass. 180; McCord v. Western Union T. Co. 39 Minn. 181, 39 N. W. 315; Pullman P. C. Co. v. Gavin, 93 Term. 53, 23 S. W. 70; Richherger v. Am. Exp. Co. 73 Miss. 161, 18 South. 922; Jones v. Glass, 35 N. C. 305.

In the execution of his authority the agent represents his principal, and while so acting the acts of the agent are the acts of the principal, and whatever injuries result to third persons from the manner in which the acts of the agent are performed are attributable to tbe principal if tbe agent be acting in tbe execution of bis general authority to act, that is, in tbe scope of bis employment; but^tbe question as to wbat acts are witbin tbe scope of employment is not always easy of solution. It may, however, be laid down as a general rule that when a duty to a third person is intrusted to tbe agent by tbe principal, as between such third person and tbe principal tbe principal is liable for failure of tbe agent to perform.' In Jones v. Glass, supra, Chief Justice Ruffin, speaking for tbe court, said:

“If tbe defendant would have been thus liable for tbe act, bad it been that of bis own band, be is, as bailee, equally liable for it as the act of one to whose control and management be committed tbe slaves.”

Tbe doctrine is well stated in Wood in bis work on Master & Servant, sec. 321:

“In that class of cases where tbe master owes certain duties either to third persons or tbe public, whether tbe same arise from contract or statutory obligations, a different rule of liability exists from that which prevails when tbe liability sounds entirely in tort. When by contract, or by statute, tbe master is bound to do certain things, if be intrusts tbe performance of that duty to another, be becomes absolutely responsible for tbe mcmner in which tbe duty is performed, precisely tbe same as though be himself bad performed it, and that without any reference to tbe question whether tbe servant was authorized to do tbe particular act. . . . Where tbe master, by contract or operation of law, is bound to do certain acts, be cannot excuse himself from liability upon tbe ground that be has committed that duty to another, and that be never authorized such person to do the particular act. Being bound to do tbe act, if be does it by another be is treated as having done it by himself, and tbe fact that bis servant or agent acted contrary to bis instructions, without bis consent, fraudulently even, will not excuse him.”

If I understand tbe opinion of tbe court correctly it is conceded that tbe defendant is liable if Flynn was acting witbin the scope of bis duty at the time he took the automobile from the garage. The opinion reads:

“Little time need be spent with the contention of appellant that the scope of Elynn’s employment was confined to washing machines. He was the night man at the garage. That is plain. One of the duties of night men, evidently, is to wash machines. Necessarily Ms duties required him to prevent unauthorized interference with machines, to open and close the place as necessary to accommodate customers in taking out or putting them up, and to assist if' necessary. The difficulty was that he violated the very purpose of his employment instead of acting witMn the scope of it, in committing the trespass. It is hard to conceive a more plain case of stepping completely aside from the scope of one;s employment, within the rule stated, than occurred in this case.”

The opinion of the court seems to be grounded upon the proposition that the agent, Elynn, stepped aside from the scope of his duty in the circumstances causing the injury, and appears to ignore the proposition of law which makes the principal liable for the acts of the agent in violating the duty of the principal delegated to the agent to perform. An examination of the authorities will show that there is considerable confusion in the books as to when the principal may escape liability for the acts of the agent outside of the scope of his duty, or, more accurately speaking, when the agent is outside the scope of his duty in the particular case. The confusion results from determining upon the facts of each case when the agent is and when he is not acting outside of the scope of his duty. In the case at bar, however, it would seem plain under the authorities heretofore cited, as well as numerous others which might be cited, that no serious question respecting the scope of Elynn’s duty arises in this case, because the defendant, being a bailee for hire and bound under his contract to protect the machine, and having delegated that duty to Elynn, was liable for the breach of that duty by him. As said in McCord v. Western Union T. Co. 39 Minn. 181, 183, 184, 39 N. W. 315:

“Where the business with wbicb the agent is-intrusted involves a duty owed by the master to the public or third persons, if the agent, while so employed, by his own wrongful act occasions a violation of that duty, or an injury to the person interested in its faithful performance by or on behalf of the master, the master is liable for the breach of it, whether it be founded in contract or be a common-law duty growing out of the relations of the parties. 1 Shearm. & Redf. Neg. (4th ed.) §§ 149, 150, 154; Taylor, Corp. (2d ed.) § 145.”

In the case at bar it would seem plain that since the agent, Elynn, was bound to protect the car, the master could not escape liability because the agent violated such duty. To step aside from duty -means more than to commit a tort within it. No one would claim but that the bailee himself would'be liable had-he done the acts complained of here. And it is settled in this state and many others, and is not disputed in the majority opinion, as I understand it, that the agent, when charged by the bailee with the duty of protecting property, stands in the place of the bailee and his acts are chargeable to the bailee. Craker v. C. & N. W. R. Co. 36 Wis. 657; Jones v. Glass, 35 N. C. 305; Mechem, Agency, § 740; Milwaukee & M. R. Co. v. Finney, 10 Wis. 388; McMahon v. Chicago City R. Co. 239 Ill. 334, 88 N. E. 223; Goddard v. G. T. R. Co. 57 Me. 202; Birmingham R. & E. Co. v. Baird, 130 Ala. 334, 30 South. 456; Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1; Brooks v. Jennings Co. A. J. S. Asso. 35 Ind. App. 221, 73 N. E. 951; Bryant v. Rich, 106 Mass. 180; Richberger v. Am. Exp. Co. 73 Miss. 161, 18 South. 922; Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70; Williams v. Brooklyn D. T. Co. 12 Misc. 565, 33 N. Y. Supp. 849; McCord v. Western Union T. Co. 39 Minn. 181, 39 N. W. 315; Campbell v. Pullman P. C. Co. 42 Fed. 484; Barrow S. S. Co. v. Kane, 88 Fed. 197; Houston & T. C. R. Co. v. Bush (Tex.) 133 S. W. 215; note 4 L. R. A. n. s. 485; Stranahan Bros. C. Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634; Bergman, v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424; Schultz v. La Crosse City R. Co. 133 Wis. 420, 113 N. W. 658.

Tbe scope of the agent’s duty has reference to tbe proper care, protection, and preservation of tbe property intrusted to .bim, and when be violates that duty and damage results therefrom to tbe property tbe master is liable.

In Craker v. C. & N. W. R. Co. 36 Wis. 657, tbe conductor committed a tort in assaulting a passenger, and bis act was contrary to bis duty under tbe contract of carriage, which was to exercise a high degree of care in protecting passengers. Tbe court said:

“But we need not pursue tbe subject. Eor, however that may be in general, there can be no doubt of it in those employments in which the agent performs a duty of tbe principal to third persons, as between such third persons and tbe principal. Because tbe principal is responsible for tbe duty, and if be delegate it to an agent, and tbe agent fail to perform it, it is immaterial whether tbe failure be accidental or wilful, in tbe negligence or in tbe malice of tbe agent; tbe contract of tbe principal is equally broken in tbe negligent disregard, or in tbe malicious violation, of tbe duty by tbe agent. It would be cheap and superficial morality to allow one owing a duty to another to commit tbe performance of bis duty to a third, without responsibility for tbe malicious conduct of tbe substitute in performance of tbe duty. If one owe bread to another and appoint an agent to furnish it, and tbe agent of malice furnish a stone instead, tbe principal is responsible for tbe stone and its consequences.”

On tbe question of turning aside from duty there is no difference in principle between tbe Gralcer Case and tbe instant case. Tbe fact that a higher degree of care is due from a common carrier than from an ordinary bailee for hire does not change tbe rule as to scope of duty. In each case it is a tort or disregard of duty committed iu tbe line of duty. In the one case the agent’s duty was to protect the passenger, in the other the property. In each case the agent was within the line of his duty, but, disregarding it, violated the express contract which he was bound to perform.

In my opinion the Graher Case governs the instant case, and the rule of that case is’ supported by the great weight of authority, as shown by the cases heretofore cited and many others. The doctrine of the Graher Gase has been repeatedly referred to and approved by this court. Bergman v. Hendrickson, supra; Johnston v. C., St. P., M. & O. R. Co., supra; Schultz v. La Crosse City C. Co., supra; and many other cases in this court.

In Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, the duty of the agent was to preserve order and to remove offensive patrons or guests, and it was held that where the servant unjustly attacks and injures an offensive patron the master is liable.

In Richberger v. Am. Exp. Co. 73 Miss. 161, 18 South. 922, the rule is.discussed respecting the change from the old doctrine that the master was never liable for the wilful or malicious act of his servant and the rule laid down that the true test of liability now rests upon whether or not the injurious act was done in the course of the master’s business.

Stranahan Bros. C. Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634, holds that where the master owes to a third person the performance of some duty and commits the performance of such duty to a servant, the master cannot escape responsibility if the servant fails to perform it, whether such failure be ac•cidental, wilful, or the result of negligence or malice.

Pullman P. C. Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, holds that, while a sleeping-car company is not a common carrier or innkeeper, it is liable for the theft of money of a passenger on the sleeping car by the porter in charge of the car.

McMahon v. Chicago City R. Co. 239 Ill. 334, 88 N. E. 223, bolds that while the appellant was a common carrier of passengers it was not an insurer, but was bound to protect passengers from violence, and that if the passenger was assaulted or insulted through the negligence or wilful misconduct of the carrier’s servant the carrier is responsible. To the same effect is Goddard v. G. T. R. Co. 57 Me. 202.

In Williams v. Brooklyn D. T. Co. 12 Misc. 565, 33 N. Y. Supp. 49, the defendant agreed to guard the plaintiff’s residence from burglars and thieves during a certain period, and it is held that the defendant could not escape liability for the act of the guard employed in breaking into the house and stealing therefrom, because, the defendant having contracted to perform the duty, when it committed it to another it did so at its peril; that the act of the agent is to be treated as defendant’s own act, and it is liable for whatever the agent does, even though done contrary to instructions, wilfully, or fraudulently.

I have no quarrel with the cases cited from this court in the opinion. None of them are out of harmony with the Craker Case and some of them strongly support and approve it.

I shall briefly review the principal cases relied upon in the opinion of the court from other jurisdictions.

In White v. Comm. Nat. Bank, 4 Brewst. 234, the box of valuables was deposited with the bank as a gratuitous bailment, and it was held that the bank, having used due diligence in keeping the goods, was not liable, although they were stolen. Besides, it appears in the case that the bank received the deposit at the risk of the depositor. Moreover, the case went off on the proposition as to whether the box was lost by any of the officers of the bank while in the discharge of their duties and the degree of care which the law imposes under such circumstances, the court holding that under the circumstances the bailee was liable only for gross negligence.

Foster v. Essex Bank, 17 Mass. 479, is also a case of gratuitous bailment, and it was held that the bank was not liable for stolen goods where due care has been used. The deposit in tbis case was kept under tbe supervision of tbe depositor, be having tbe key. It was contended tbat tbe deposit was made under contract to keep safely, but it was beld tbat no authority •existed to make such contract.

Ellis v. Turner, 8 Term Rep. 581, simply states the general rule to the effect tbat tbe master is liable for the acts of tbe servant in things with respect to his duty, though the master is not answerable for the agent’s misconduct in things tbat do not respect his duty to tbe master.

Coleman v. Riches, 16 C. B. 104, is very remote in its application. The case is one where wilful fraud had been committed in giving a receipt for grain delivered which bad not been delivered.

Adams v. Cost, 62 Md. 264, is a case where a person placed his mare at livery and instructed tbe servant of tbe proprietor to take her out for exercise, which was no part of the contract of livery, and while the servant had her out for such purpose •she died. Held, and very properly of course, that tbe proprietor of the stable was not' liable though the mare died in consequence of the immoderate riding and carelessness of tbe servant.

Maddox v. Brown, 71 Me. 432, is a case where a son, in tbe .absence of his father and without his knowledge, took his father’s horse and carriage, left the horse unfastened, and it being frightened ran away, and the carriage collided with the plaintiff’s and injured it. Held, tbat tbe father was not liable.

Merchants Nat. Bank v. Guilmartin, 88 Ga. 797, 15 S. E. 831, is a case of gratuitous bailment. The deposit was received at tbe banlc through its cashier and tbe cashier stole tbe deposit. Held, tbat the banlc, having used tbat degree of diligence which tbe law required under tbe bailment, was not liable. In tbis case tbe court said (page 801) :

“The custody of tbe deposit implies no act to be done, but only a mere continuance, of possession until a return of tbe property is demanded. The cashier had nothing to do about it except suffer it to remain in a safe place of deposit. Consequently in taking it to himself he is said to ‘step aside’ from his employment to do an act for his personal gain, regardless of the business for which he was engaged.”

Cavanagh v. Dinsmore, 12 Hun, 465, is a case in which the plaintiff’s intestate was run over and killed by defendant’s truck through the negligence of the driver while pursuing an unauthorized course, and it was held that the driver was not. acting in the business of his master at the time of the accident, hence defendant was not liable.

Stone v. Hills, 45 Conn. 44, is also a case where the driver of a team was acting outside of the scope of his duty when the injury occurred, and was held not to be in the employment of the defendant.

Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 326, involves the question of liability upon a check signed by the cashier of an incorporated bank.

The two cases mainly relied upon to support the majority opinion are Evans v. Dyke A. Co. 121 Mo. App. 266, 101 S. W. 1182, and Sanderson v. Collins, 90 L. T. Rep. 243. In Evans v. Dyke A. Co. it appears doubtful from the record whether there ever was a delivery to the company, but, even if so, there was no special duty, upon the facts of the case, due' from the company to the plaintiff, by special contract or otherwise, to care for or protect the machine. The machine was simply intrusted by Evans to Lemon, agent of the company. It appears from the opinion and the facts stated that the agent used the machine in a capacity wholly detached from his employment.

In Sanderson v. Collins it does not appear that the coachman was charged with any duty of caring for or protecting the-machine during the night. It appears that when the coach was put in for the night the coach house was locked and the key left with the master or kept in the hall of his house. It is true that tbis ease approaches more closely the instant case than any other cited in the opinion, but I think it may be distinguished from the case at bar, and, if it cannot be, my opinion is it ought not to be followed.

I think the judgment of the court below should be affirmed.

I am authorized to say that Mr. Justice Siebecxee and Mr. Justice TimtjN concur in this dissent.

A motion for a rehearing was denied June 4, 1912.