| Wis. | Jul 8, 1922
Lead Opinion
The following opinion was filed May 9, 1922:
The finding of the jury as to the damages, and the negligence of the defendant Forcier and the freedom from negligence of the plaintiff, are not in dispute. The sole issue is whether or not the defendant Forcier was acting within the scope of his employment with the defendant Barber at the time of the accident.
The defendant Forcier was the principal witness, and the only witness on this question. The defendant Barber did not testify. Forcier testified repeatedly that it was necessary to test out the car and that he made the trip for that purpose ; that it was a part of his duties to. keep the car in repair, to overhaul it prior to the return of Barber, and that he was making the test at the time of the accident. He repeatedly said that the primary purpose of the trip was to make the test, and but for the necessity of testing the' car he would not have made the trip. On the other hand, he admitted that one of the reasons for making the trip at the particular time that he did, and for taking the particular route that he did, was his desire to call on his friend at Chippewa Falls. On this state of the testimony it is clear that it presents a question for the jury. There does not appear to be any error in the submission of the- case to/the
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). In my opinion the case should have been dismissed as to the defendant Barber. Although Forcier had authority to test the car, the evidence was undisputed that he had no right to use it for his privatepurposes. It is true he stated that his primary purpose in making the trip was to test the car. But this statement was his conclusion- rather than a statement of fact. He repeatedly stated that he would not have taken the car out until the following morning but for the arrangement he had made with his lady friend and the other boys. He had taken the car out of the garage at a time when there was abundant opportunity to test it in the daylight. He was on his so-called testing trip outside of working hours and when, as he said, it was quite dark. Before the accident happened he had ascertained that there was no leak. After the accident the party continued the trip to Chippewa Falls for the purpose of seeing the young ladies.
As I interpret the testimony it conclusively shows that Forcier was using the car for his own convenience and was “on pleasure bentand in my judgment there was no credible evidence that he was acting within the scope of his employment when the accident happened.
A motion for a rehearing was denied, with $25 costs, on July 8, 1022.