102 Neb. 328 | Neb. | 1918
Lead Opinion
Plaintiff recovered a judgment for the death of Isadore Levin caused by the negligence of one Boy Furstenberg in driving an automobile at a reckless rate of speed upon the streets of defendant city. That Furstenberg was negligent is admitted, hut defendant denies responsibility for his acts.
On behalf of the city it is urged that Furstenberg was not an officer, agent or employee of the city; that Baughman was a police officer; that the garage of which he was foreman was under the police department and maintained principally for looking after cars in use in the police department; that no direction given by Baughman would bind the city; that he was without authority to hire or discharge persons in behalf of the
The evidence discloses that the car of the street department had regularly been repaired at this garage; that, although Baughman was carried on the city’s payroll as a policeman, the service he rendered was that of a shop foreman. That he had the right, and that perhaps it was his duty to make the repairs on the street commissioner’s car, had long been recognized by the custom of making such repairs. If it were his duty to make the repairs, he surely had the authority to send after the necessary articles, and, if he could direct his helpers to jack up the car and change the tires, he could, no doubt, direct a helper to go to another building and bring the inner tube. In making such repairs and in giving such orders Baughman was acting in behalf of the corporate interests of the city, and not as a police officer. The fact that he was enrolled as a policeman and might have been clothed in a policeman’s uniform and given a beat upon the street does not change the character of his employment, when he was in fact doing the work of a shop foreman. The character of the employment will govern, and he must be held to have the power incident to the duties which the city imposed upon him. His work was inconsistent with the duties of a peace officer, but entirely consistent with the duties of an employee engaged by the city in its corporate capacity.
The car which Furstenberg drove, it is true, was not owned by the city, and had been taken to this garage by its owner to be sold to the police department; but it had been stored in this garage as city cars were stored, the oil and. gasoline for its use had been fur
The defendant is not liable for the negligence of its police officers while engaged in the police department, but Baughman had lost the character of a peace officer, and had become the servant of the municipality in its corporate capacity. As foreman of the shops he gave directions to those engaged in the handling of cars and directed the making of repairs. The character of this work was such, under the circumstances, that the employment of assistants on. the master’s account must necessarily have been contemplated. The authority to send PurStenberg on this errand, if not directly given, was implied, and the negligence of the messenger must be regarded as the negligence of the city. See article by Mechem on “The Liability of a Master to Third Persons for the Negligence of a Stranger Assisting his Servant,” in 3 Michigan Law Review, 198; also, 18 R. C. L. 785, sec. 245; and note to Thyssen v. Davenport Ice & Cold Storage Co., 13 L. R. A. n. s. 572 (134 Ia. 749).
The instructions complained of are in line with this view of the law, and the judgment is
Affirmed.
Concurrence Opinion
concurring.
The city established an automobile repair shop, and placed it in charge of Mr. Baughman as foreman and manager. He must be presumed to be an expert automobile repairer and fully competent to conduct such a shop and manage such a business. "We have generally held that, when a municipal corporation engages in such business, its responsibilities and liabilities are the same as are those of private corporations or individuals in the conduct of such an enterprise. The city sent an
Dissenting Opinion
dissenting.
Law and common sense generally do and should agree. I do not say the opinion is not common sense, but I do believe that hundreds of business men, farmers, shop-owners, factory-owners, and others will be surprised to learn that their foremen (mere servants), without power to hire men, can engage a stranger at work operating another stranger’s automobile through the congested streets of a city, and do it in the master’s name so as to make him responsible for the negligence of the stranger so engaged. Operating an automobile is a hazardous occupation and is so recognized in the law.
One can imagine that the law might be that, when one is injured by the negligence of another, and the accident is one which would not have occurred but for the fact that a third party was engaged in a business enterprise, which thus became an incidental cause or occasion of the injury, then the third party should be responsible for the damages sustained. It -could be said that the business should bear the loss which it had made possible. But this would be neither good law nor good sensei Such a rule would be destructive of business enterprise. It would make it impossible for a talented young man of limited means to pass from the wage-earning to the proprietor class. One such judgment as in the instant case might exhaust his capital.
The law as it is may, I think, be stated in a sentence. It holds those only liable for negligence who are guilty of it, either by their own act or that of another acting for them. It says to the individual employing men, either as agents or servants: “You must not be negligent in your selection of them- but must have a
The trust committed to an agent is. exclusively personal, and cannot be delegated by him. A servant, which term includes foreman, has not the power to make contracts in the name of his mastdr. Neither an agent-nor a servant has, ordinarily, the power to employ men.
Applying these general principles of law, Baughman, the foreman, was not empowered in the name of his master to put Furstenberg at work operating the automobile, and the master-was not liable for Furstenberg’s negligence in operating the car.
, But there are certain exceptions, or apparent exceptions, to the general rule above stated. Among these are the following:
(1) The master being liable for his servant’s negligence while acting within the scope of his employment, it follows that, if the servant is himself negligent in permitting a stranger to engage in his master’s work, then in certain cases the master may be liable for the servant’s negligence. This rule has no application to the instant case, because this action is based, not upon the negligence of Baughman, foreman, but upon the negligence of Furstenberg.
(2) Cases have arisen where the servant or agent permitted a stranger to help him in his work, under his control' and direction, in which the master has been held liable for the stranger’s negligence, on the principle dominus pro tempore; the stranger’s acts are the servant’s acts. In Slothower v. Clark, 191 Mo. App. 105, 110, Lord Abinger is quoted as having said in an early case, where the servant permitted another, sitting beside him, to drive the team: “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.” The court also said (quoting from James v. Muehlebach, 34 Mo.
(3) Authority of the agent, and sometimes of the servant, to engage others may be implied in certain cases growing out of the exigencies or necessities of the situation, the nature of. the authority given, or based upon the custom or usage of trade in similiar cases. An instance arises when' in a sudden emergency the agent or servant is unable to consult with his.master or principal, and the law implies authority to procure the necessary help.
The majority opinion seems to be based upon implied authority growing out of the nature of the authority given to Baughman, foreman, or possibly based upon implied authority growing out of the custom of trade in similar cases. Baughman as foreman would, I think, have no authority either to employ a man or to delegate his authority to a stranger. This involves a question of fact. The -law implies authority only where it is necessary or customary. If a man were needed to go after the tube, that end could be accomplished by telephoning the messenger or express service; or it could be done by dealing with Purstenberg as an independent contractor to procure the tube, and in doing so he would act under his own direction and control, in either of which cases no liability could arise against the city. Assuming, however, that Baughman as foreman of the shop had implied authority to send another after the tube, it by no means follows that he could send him in an automobile, a hazardous occupation. Mechem, in his work on Agency, vol. 1, (2d ed.) sec. 315, in discussing this' exception to the general rule; states: “Where in the execution of the authority an act is to be performed which is of a purely mechanical, ministerial or executive nature, involving no elements of judgment, discretion or personal skill, the reason for the general rule does not apply, and the power to entrust the performance of it to a subagent may be
Mechem is cited as an authority in the opinion. He is a safe authority. I call attention to the following' sections in the recent edition of his work .on the Law of Agency, vol. 1, (2d ed.) secs. 305, 306, 313, 315, 335, 336, 988, and vol. 2, sec. 1866. For other authorities, see 2 C. J. p. 689; Long v. Richmond, 68 N. Y. App. Div. 466; Mangan v. Foley, 33 Mo. App. 250; James v. Muehlebach, 34 Mo. App. 512; Slothower v. Clark, supra; Geiss v. Twin City Taxicab Co., 120 Minn. 368; Gwilliam v. Twist, 2 Q. B. Div. 1895 (Eng.) 84.
Dissenting Opinion
dissenting.
In my judgment the doctrine announced in the majority opinion and in the concurring opinion fastens upon cities a new and indefensible liability for the wrongs of strangers. A person on the city pay roll as a policeman, but in charge of a municipal garage where automobiles are repaired for the police department, permitted a stranger to go to another garage for a rubber tube. The stranger took a powerful automobile belonging to another stranger, and while rushing along a public street negligently killed a man. For the negligence or wrong thus described, the city in this lawsuit was adjudged to pay $8,877. In affirming the judgment, as I view the decision, negligence is traced from the dangerous agency of a stranger’s rapidly-moving automobile in.a populous city to another stranger, and from the latter through a policeman or foreman of a municipal repair shop to the city itself. I cannot agree with the majority. In my opinion the conclusion has no substantial foundation in fact or law. The private citizens who bear the pecuniary burdens of municipal government ought to' find the limits of official power in state statutes, in ordinances enacted pursuant to those statutes, and in contracts .or employments authorized by such statutes and ordinances. I do not observe in