Schaefer v. Osterbrink, 67 Wis. 495

Schaefer v. Osterbrink

67 Wis. 495 | Wis. | 1886

Cassoday, J.

1. Exception was taken to the admission of evidence. It was certainly competent for the plaintiff to prove that prior to the accident Henry had been in the habit of driving his team to church and elsewhere, and the *499extent and character of the driving, as hearing upon'the natnre of his service and the scope of his authority from his father. It was also competent to show the disposition of the team as to racing; that prior to the accident it would, when driven up behind another team and turned to go by, shoot ahead like an arrow, and that the team had been trained to go in that way. We see no objection to proving that the team acted the same way a few days after the accident. Here the evidence was substantially of that nature, and most of it related to the conduct of the team prior to the accident. The case is unlike the attempt to prove an individual to be habitually careless or reckless, as in Brennan v. Friendship, ante, p. 223; Whitney v. Gross, 140 Mass. 232. One of the questions put to a witness, standing alone, might seem at first to come within the objection, but when taken with the balance of his testimony it clearly related to the habits of the team under the training of Henry, apparently with the consent of his father, and consequently was admissible, within the rule sanctioned in Hoverson v. Hoker, 60 Wis. 513.

2. Exception was taken because the court refused to submit to the jury a question as to whether Henry’s conduct, at the time and place in question, was such as to frighten the plaintiff’s team, and, if so, whether such conduct was in that respect wilful; and because the court refused to instruct the jury, in effect, that if such conduct of Henry was wilful then the plaintiff could not recover as against Ever-hart. The question of the master’s liability for the wilful misconduct of his servant, acting in the course of his employment, was fully discussed and, as we think, settled in Craker v. c. & N. W. R. Co. 36 Wis. 657; Bass v. C. & N. W. R. Co. 42 Wis. 654.

As to whether the master was liable for the wilful misconduct of the servant in such case, it was said in the Graker Gase, on the part of the court, that “the true dis*500tinction. ought to rest, it appears to us, on the condition whether or not the act of the servant be in the course of his employment.” True, it was there said, that, “ however that ma}’' be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or wilful, in the negligence or in the malice of the agent; the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent.” Page 669.

It is claimed that no such duty here existed. The mere fact that the conductor’s duty to the passenger in that case arose out of the passenger’s contract with the master does not confine the principle involved to the breaches of duty created by contract. Thus, in the very recent case of Annas v. M. & N. R. Co., ante, p. 46, it was in effect held that a master could not, even by written stipulation, relieve itself from liability for the failure of a duty imposed by law through the gross negligence or wilful misconduct of its servants while acting in the line of their employment, notwithstanding such duty was voluntarily undertaken by the master without compensation. A duty may and often does exist without any contract. Two teams upon a public highway, each with a sleigh or vehicle, coming in close proximity to each other, the driver of each most certainly owes a duty to those riding with the other. That duty is created by law, and requires each driver to proceed with care and circumspection and with reference to the shifting situation of the other. When such driver is a servant acting within the course and scope of his employment, then such duty rests upon the master as well as the servant. Lampus v. L. G. O. Co. 32 Law J. Exch. (N. S.), 34. The employer in such *501case, being responsible for the performance of such duty by bis delegated agency, can no more escape liability for such failure when it occurs through his agent’s gross negligence or -wilful misconduct, than he can when it is by reason of his agent’s want of ordinary care. Such being the law in this state, the refusal to submit or instruct as thus requested was not error, because the jury were expressly charged, in effect, that in no event could they allow Louis any punitory or exemplary damages, nor anything more than compensatory damages. This entirely eliminated from the case the question of wilful misconduct.

3. Exceptions were taken because the court refused to give the following instructions: “If the jury find from the evidence that the defendant Henry was not, at the time of the accident, engaged in the business of his father, but was on a business or pleasure trip not connected with his father’s business, the plaintiff cannot recover as against the defendant Everhart.” Again: “A son is not the servant or agent of his father, unless he is engaged in the service of his father and under his authority.” It seems to us that the court did, in substance, give such instructions, in these words: “In order to charge the father, the defendant Ever-hart, with the consequences of Henry's negligence, it must appear from the evidence satisfactorily to your minds that the relation between them of master cmcl servamt existed at the timej that Henry was the servant of Ms father; and that the negligent acts of Ilenry were committed i/n the line of his employment as such servant.” And again: “It is undisputed that the defendants were at the time father and son, and that the son was a minor. This relatiop does not of itself render the father liable for the wrongful conduct of the son.” Whether Henry was at the time the servant of his father and acting within the line of his employment as such servant, was, of course, a question of fact for the FLU

*5024. Exception was taken because the court charged the jury as follows: “The presumption is that a minor child living with his father and using his team and conveyance in and about the business of such father, is acting on his behalf and upon his directions, until the contrary is made to appear by the evidence. This fact established, and the burden to show that his son was not his servant is imposed upon the father.” This is very nearly the exact language of Mr. Justice Taylor in Gerhardt v. Swaty, 57 Wis. 37, and seems to be a sound proposition of law. We do not understand this portion of the charge as a direction to presume that at the time of the accident the son was engaged in his father’s business. On the contrary, the court had previously treated the question “as to whether the son was or was not the father’s servant at the time of the accident,” as counsel do,— “one of the disputed issues in the case,” — and accordingly had submitted it to the jury for determination.

True, the court continued: “ The driving of the father’s team for the purpose of conveying members of the family to and from church, in accordance with the usual habit or custom of the family, with the knowledge and approval of the father or without objection by the father, will be regarded as driving the team in and about the business of the father. No contract of hire is necessary to create the relation of master and servant. It is sufficient to create that relation that one charged as servant, whether a son or a person in no way related, is permitted habitually to perform the work — drive the team,— or otherwise to act as a servant of the owner, according to the circumstances of the case, with the knowledge and consent or acquiescence of the latter, or with the knowledge or acquiescence of the agent in general charge of the business or property of the owner, in the absence of the latter.” These instructions present the question whether the evidence of such prior habitual service *503on the part of Jlenry, — Ms driving to and from church ■with his father’s team, in accordance with the usual habit or custom of the family, — • with the knowledge or acquiescence of the father and then, in his absence, of the older daughter in general charge of the business and property, was sufficient to justify the jury in finding that, at the time and place in question, Henry was acting as the servant of his father and in the course of his employment. After a careful examination of all the facts and circumstances disclosed in the record and of the authorities cited by counsel, we are forced to the conclusion that the evidence is sufficient in law to sustain the verdict against the father as well as the son.

In Bard v. Yohn, 26 Pa. St. 483, cited, the son was several years past his majority, had a family of his own, and upon the occasion in question took his father’s team without permission and was using them exclusively in his own business. Here Henry was a minor living with his father, and took his sisters to church as he had for years been accustomed to do with the knowledge of his father. In Way v. Powers, 57 Vt. 135, cited, the son was twenty-eight years of age, and the case is otherwise quité similar to the Pennsylvania case. The case of Maddox v. Brown, 71 Me. 432, & C. 36 Am. Rep. 336, is more like this, for the son was a minor, but he was not using the horse and carriage in his father’s business at the timé.

That the jury were justified in this case in finding that the son was at the time acting as the servant of the father and in the course of his employment, see Hoverson v. Noker, 60 Wis. 513; Gerhardt v. Swaty, 57 Wis. 24; Mulvehill v. Bates, 31 Minn. 364; Evans v. Davidson, 53 Md. 245.

5. Exception was taken because the court instructed the jury, in effect, that if Henry “ was guilty of negligent and careless conduct as charged, in what he did on the occasion referred to, and such conduct on his part frightened the *504Schaefer team and caused it to run away,” and Louis was thereby injured without contributory negligence, then Henry was liable. The ground of this exception is that the court did not define the degree of carelessness or negligence that would make Ilenry liable. But the “negligent and careless conduct as charged” was really gross, which was especially favorable to Henry. Besides, if he desired a more favorable instruction in that regard, it' should have been requested. In the absence of such request, there is no ground for urging the exception as error. There seems to be no material error in the record.

By the Court.— The judgment of the circuit court is affirmed on both appeals.