This is an action on the case, to recover damages for injuries to plaintiff occasioned by the nеgligence of the servant of the defendant in allowing his horse to run away in the city of Detroit, and against the wаgon of the plaintiff in which she was riding, overturning the same, breaking her arm, and otherwise causing serious personal injuries to her. That the defendant left his horse standing in the street unhitched, at the time the injury occurred, is undisputed, and thаt he was accustomed,to do so. Neither were the injuries claimed to have been received by thе plaintiff contested, No question is made upon the pleadings.
The defenses set up were: 1st. That the driver, one Dubois, was not the servant of the defendant; and 2d. He was not acting within the scope of his authority at the timе the injury occurred, if he was the defendant’s servant. Upon both these points the verdict of the jury was against thе defendant, and unless there was something wrong in the rulings of the court upon the trial, or in charging the jury, the judgment should not bе disturbed.
The plаintiff was permitted to prove that Dubois was in the habit of leaving his horse unhitched in the street, and that he was also in the habit of driving the horse to the same place where he left him on the day the injury occurred, and leaving him unhitched while he was taking his meals. ■ We can see no objection to this testimony. The long-continued and notоrious habit of the servant in doing his master’s business, is, at least, some testimony tending to show knowledge and permission, if not аpproval, by the master, and as such was competent in this case. It further tended to show him acting within the scope of his employment.
E. P. Zerbe, a witness for plaintiff, testified, in substance, that lie worked for defendant and his partner, one Alexander, in Detroit, from March, 1881, until after the accident occurred, as their foreman; thаt they had a horse and wagon belonging to the firm, and the name was upon the wagon ; that they were in partnеrship, and Dubois was delivering boxes for them the day of the accident; that they quit doing business together as partners about two weeks after the accident- ; that Holliday told him after this that he was running the factory alone; thаt Mr. Dubois was delivering boxes under his instructions as foreman of Holliday & Co. when the accident occurred; that nоthing was said about their not being in partnership until about two weeks after the accident; that Alexander said Holliday was going to have the business alone, and about a week after that Holliday said he was going to run the shоp alone; that during the month of September Holliday brought an order to make boxes, and gave money to pay the hands, and that the books were kept in the name of W. P. Holliday & Co.
Defendant’s counsel here moved to strike out all of Zerbe’s testimony given to show Holliday’s partnership when the acci
Whether Dubois was acting within the proper scope of his emplоyment or not, depended upon the finding by the jury of the existence of certain facts, and these, by the general verdict, were with the plaintiff, and cannot now be disturbed. This disposes of the defendant’s fifth assignment of error.
Thе next error assigned relates to the plaintiff’s right to recover for the doctor’s bill, and the expenses of her sickness complained of. The defendant claims his liability, if any, was to the husband, and not to the plaintiff. We think it was competent for the wife to recover for the expenses incurred for these items, under the cirсumstances of this case.
We see no error in the court’s refusal to give the defendant’s first three requests: (1) That the burden of proof in this case is on the plaintiff to show that the servant, Dubois, was acting within the course of his employment at the time of the accident to plaintiff; (2) That there is no evidence in the case to shоw that Dubois, the driver, was acting within the course of his employment at the time of the accident to plaintiff, аnd plaintiff is not entitled to recover damages in this suit; (3) That there is no evidence in the case to show that Dubois, the driver, was the servant of Holliday, the defendant, at the time of the accident to the plaintiff, and plaintiff is not entitled to recover damages in this suit.
There was some testimony to go to the jury on the question referred to in the second and third requests, and we do not think the burden of proof claimed in the first request was
"We find no error in the record, and The judgment must be affirmed.