120 Minn. 368 | Minn. | 1913
This is an action to recover for personal injuries received by plaintiff in being struck by an automobile. The verdict was for plaintiff in the sum of $1,200, and defendant appeals from an order denying its motion in the alternative for judgment notwithstanding the verdict or for a new trial.
It is conceded on this appeal that the evidence was sufficient to sustain the verdict on the question whether the accident was caused by negligence on the part of the person who was operating the automobile. The principal contention is that defendant is not liable for the negligence of this driver, or' chauffeur. The facts bearing upon this question are these:
Defendant was in the business of operating taxicabs in St. Paul, and also repaired automobiles for others. On the day of the accident Connolly and Hildebrand, two employees of defendant, had completed repairs on a car belonging to one Printon, and pursuant to custom took the car out on the street preparatory to “trying it out,” to ascertain if it had been properly repaired. Defendant’s foreman was present when the two men had the car on the street in front of defendant’s garage, and instructed them to go to a repair supply shop, while- they were operating the car, and procure a piece of pipe to be used in repair work. At this time one Vielleux, who was a tax
Tbe evidence was clearly sufficient to justify a finding that Connolly and Hildebrand were trying out the car at tbe time of tbe accident, and that they were authorized by defendant to do so. Clearly, therefore, if tbe accident bad happened through tbe negligence of either of these servants, defendant would be responsible. Tbe claim is that Yielleux, through whose reckless driving tbe accident happened, was not employed or authorized by defendant to drive tbe car, and therefore that tbe rule of respondeat superior does not apply. Tbe facts are most peculiar. Yielleux was a servant of defendant, but be was only employed to drive a taxicab, and was not directly authorized by defendant to try out tbis car. But defendant’s foreman knew that Yielleux was in tbe automobile when it started, and be was permitted by Connolly and Hildebrand to operate it. They were present ail tbe time, and apparently made no effort to prevent Vielleux from acting as chauffeur, or from exceeding tbe speed limit.
We think that defendant is responsible for tbe negligent operation of tbe qar, even conceding that it bad not authorized Yielleux to
A clear application of this rule is found in the model opinion in Booth v. Mister, 1 C. & P. 66, where the facts were that a servant of the master, driving a cart on his master’s business, intrusted the reins to a friend riding with him, who drove carelessly and caused an accident. The English judge said: “As the defendant’s servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant had held them himself.”
In Althorf v. Wolfe, 22 N. Y. 355, the master had instructed his servant, Fagen, to remove snow and ice from the roof of a house. Fagen procured his friend Cashman to assist, and Cashman negligently threw ice and snow on a person passing by, who was killed. It was held that the master was liable.
In Dimmitt v. Hannibal, 40 Mo. App. 654, a boy who was not employed by defendant, but who had performed voluntary services about a station, threw a switch with the consent and in the presence of a brakeman, whose duty this was, but without his direction. It was held that the company was liable to a passenger injured as a result.
The cases are collected in. the note to Thyssen v. Davenport, 13 L.R.A.(N.S.) 572. We think they support the conclusion that the master is liable when the act is done in the presence of the servant and by his direction, or with his acquiescence, though the person doing the act is not a servant of the master, and though the master has not authorized his servant to employ an assistant. It is generally stated, as in Althorf v. Wolfe, that the act of the stranger is substantially the act of the servant; the stranger being considered an instrumentality in the hands of the servant. In many cases the liability is placed upon the ground of the servant’s negligence in permitting another to perform his duties in a negligent manner.
We have no disposition to question the soundness of the rule that under the doctrine of respondeat superior a master is not, generally speaking, responsible for the negligence of another, not his servant, or the application of this doctrine to a case where the negligent act is done by one without authority employed by the servant to assist him, and not done in the presence of the servant and with his consent. But where the servant is present, and consents to the performance of the act by the assistant in a negligent manner, we think the negligence is that of the servant, and that the master is responsible.
The facts in the case at bar are much stronger for the plaintiff than those in any of the cases cited, and are sufficient to sustain the liability of defendant under any rule. Vielleux was defendant’s servant, though he was not employed by defendant to test cars that had been repaired, or to drive this particular car. He was, however, an experienced chauffeur, a driver of a taxicab for defendant. Defendant’s foreman saw him ride off in the car with the two men who were
We find no merit in the criticisms of the remarks of plaintiff’s counsel to the jury. They did not go beyond legitimate argument, and are certainly no ground for a new trial.
The amount of the verdict, while large, does not seem to us so excessive as to warrant our interference.
Order affirmed.