Gerretson v. Rambler Garage Co.

149 Wis. 528 | Wis. | 1912

KeRwikt, J.

There is ample evidence to entitle the jury to find that the chauffeur so negligently operated the car as to cause the injury in question. Rut it is insisted by respondent that the directed verdict for defendant and judgment dismissing the complaint should be upheld for the following reasons: (1) that the chauffeur was the servant of W. E.. Gerretson, the hirer of the car; (2) that even though the chauffeur was the agent of defendant, still no negligence was shown, because the negligence of the chauffeur was not chargeable to defendant; and (3) that the contract between Gerretson and deíénd-ant was void because, made on Sunday, therefore no recovery could be had upon it.

1. There is no evidence in the case tending to show that the chauffeur was the servant of deceased or of W. E. Gerretson. The defendant furnished the car with the chauffeur to operate it, and the chauffeur had charge and management of the car. The deceased or W. F. Gerretson exercised no control as to the operation and management of it. The chauffeur, therefore, was the servant of the defendant. Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391; Morris v. Trudo, 83 Vt. 44, 74 Atl. 387; Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533; Frerker v. Nicholson, 41 Colo. 12, 92 Pac. 224; Murray v. Dwight, 161 N. Y. 301, 55 N. E. 901; Quarman v. Burnett, 6 M. & W. 499.

2. The respondent, in support of the judgment below, strenuously insists that the plaintiff cannot recover because the right to recover must be traced through a Sunday contract, and relies mainly upon Sentinel Co. v. A. D. Meiselbach M. W. Co. 144 Wis. 224, 128 N. W. 861. In that case the action was brought to recover upon quantum meruit for services performed on Sunday, and it was held that no recovery could be bad because of our statute, sec. 4595, Stats. (1898), which prohibits labor, business, or work, except only works of necessity or charity, on Sunday. It will be seen that in that case the contract upon which the suit was based was in direct violation of the statute, being for Sunday publications, and came clearly within the terms of the statute as “labor, business, or work” and not work of necessity or charity. The right of action in the instant case is not based upon the contract of hiring between W. F. Gerretson and the respondent, even if it should be held that such contract was in violation of the Sunday law, a point we do not decide. It has been held under statutes quite similar to ours that it is not illegal to walk, drive, or exercise on Sunday. Barker v. Worcester, 139 Mass. 74, 29 N. E. 474; Sullivan v. Maine Cent. R. Co. 82 Me. 196, 19 Atl. 169. Nor to carry home a visitor. Buck v. Biddeford, 82 Me. 433, 19 Atl. 912. See, also, Crosman v. Lynn, 121 Mass. 301.

But whether the contract of hiring was void or not is not material here, since the plaintiff’s right of recovery is based upon the tort of the defendant’s servant while acting within the scope of his duty in operating the car. Many cases are cited by both parties from foreign jurisdictions, but the question has been settled by this court in favor of the appellant. Gabbert v. Hackett, 135 Wis. 86, 115 N. W. 345; Sutton v. Wauwatosa, 29 Wis. 21; McArthur v. Green Bay & M. C. Co. 34 Wis. 139, 150; Knowlton v. Milwaukee City R. Co. 59 Wis. 278, 18 N. W. 17.

It is argued, however, by respondent that if the contract of hiring were void no duty rested upon the defendant, and that the case should be distinguished from those of common carriers, where the law imposes a duty independent of contract. We think the contention is not only against the decisions of this court but against the great weight of authority elsewhere.

The duty of a common carrier, while in some degree imposed by law, is a duty growing out of contract, and this court beld in Gabbert v. Hackett, supra, that whether the contract was valid or invalid was immaterial, because it had no causal relation with the injury. In the case at bar the defendant undertook for hire to carry the deceased and others, and in the performance of that duty, through negligence, caused the injury to deceased. The contract of hiring had no causal relation with the injury. The cause of action is based upon the tort or negligence of the defendant. In McArthur v. Green Bay & M. C. Co., supra, the court said:

“The same state' of facts which would entitle the plaintiff to recover, had the injury happened on any day other than Sunday, will entitle him to recover in this action notwithstanding the injury was received on Sunday, and when he was unlawfully navigating the canal with his-boats.”

See, also, Bucher v. Cheshire R. Co. 125 U. S. 555, 8 Sup. Ct. 974; Kansas City v. Orr, 62 Kan. 61, 61 Pac. 397; Gross v. Miller, 93 Iowa, 72, 61 N. W. 385, 26 L. R. A. 605; Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. S. T. Co. 64 U. S. (23 How.) 209.

3. The evidence being sufficient to warrant the jury in finding that the agent or servant of the defendant was acting within the scope of his duty and that he was guilty of a want of ordinary care which caused the injury, his negligence was the negligence of the defendant. This doctrine is well settled by the decisions of this court. Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922; Bryan v. Adler, 97 Wis. 124, 127, 72 N. W. 368; Rogahn v. Moore Mfg. & F. Co. 79 Wis. 573, 575, 48 N. W. 669; Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Cobb v. Simon, 119 Wis. 597, 97 N. W. 276; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424; Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533; Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016; Daley v. C. & N. W. R. Co. 145 Wis. 249, 129 N. W. 1062.

Tbe principles of tbe foregoing cases apply to tbe instant case. In Rogahn v. Moore Mfg. & F. Co., supra, this court said:

“There bas been much discussion in tbe courts as to bow far tbe master is liable for tbe torts of bis servant, and many nice distinctions have been made; but it is generally agreed that for tbe negligent or wrongful acts of tbe servant in tbe line of bis duty, for which tbe master would be liable if tbe act were done by himself, tbe master is responsible.”

Tbe doctrine is peculiarly applicable to tbe operation of an automobile. In Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, where tbe court bad under consideration tbe question, it is said:

“Tbe management of an automobile properly can be trusted only to a skilled expert. Tbe law will not permit such a vehicle to be run in tbe streets except by a licensed chauffeur of approved competence. Tbe danger of great loss of property by tbe owner as well as of injury to tbe chauffeur, bis servant, is such as to make it of tbe highest importance that care should be exercised in bis interest and that tbe control and management of tbe machine should not be given up to tbe hirer.”

See, also, Johnson v. Coey, 237 Ill. 88, 86 N. E. 678; Trout v. Watkins L. & U. Co. 148 Mo. App. 620, 130 S. W. 136; Routledge v. Rambler A. Co. (Tex. Civ. App.) 95 S. W. 749; Morris v. Trudo, 83 Vt. 44, 74 Atl. 387; Frerker v. Nicholson, 41 Colo. 12, 92 Pac. 224.

It follows that the judgment of tbe court below must be reversed.

By the Court. — Tbe judgment is reversed, and tbe cause remanded for a new trial.