Seidl v. Knop, 174 Wis. 397

Seidl v. Knop

174 Wis. 397 | Wis. | 1921

Siebecker, C. J.

The plaintiff claims that the defendant is liable for the injury he sustained upon the ground that the alleged negligence of Reese, as driver of defendant’s truck, was an act in the execution of his general authority, and hence at the time of the collision he was acting within the scope of his employment. On the part of the defendant it is claimed that the facts and circumstances show that at the time of the accident Reese and the plaintiff were engaged in executing a personal arrangement to give plaintiff a ride on the truck, and that Reese digressed from his course of driving the truck and therefore was outside of his authority and the course of his employment. The general rule of law respecting the master’s liability for the acts of his servant in cases of this nature has been repeatedly adverted to in the decisions of this court under a variety of circumstances and conditions. Among them are the following: Craker v. C. & N. W. R. Co. 36 Wis. 657; Cobb v. Simon, 119 Wis. 597, 97 N. W. 276; Schultz v. La Crosse City R. Co. 133 Wis. 420, 113 N. W. 658; Topolewski v. Plankinton P. Co. 143 Wis. 52, 126 N. W. 554; Firemen’s P. Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507; Gewanski v. Ellsworth, 166 Wis. 250, 164 N. W. 996; Oakes v. Marshall-Wells H. Co. 158 Wis. 165, 147 N. W. 832; Smith v. Yellow Cab Co. 173 Wis. 33, 180 N. W. 125; Thomas v. Lockwood Oil Co. post, p. 486, 182 N. W. 841. It is undisputed that plaintiff, while riding with Reese on the trip with the truck in the morning, arranged with Reese to meet him on the Port Washington road in the afternoon and ride home with him on the truck, and that they were engaged in carrying out this arrangement when the accident occurred. It is clear that Reese violáted his duties towards defendant in engaging to carry other persons on the truck. It also appears that he digressed from the proper side of the road to the wrong side to pick up plaintiff for a ride on the truck, thus doing *400the very thing he had no authority to do. Can it be said that, because at the time of doing these unauthorized acts he was engaged in driving the truck on a trip to get a load of gravel, the plaintiff’s'injuries were caused by Reese while acting in the course of his employment? As has been often said, the rule is plain, but its application is not always readily perceived. We think the law on this subject as stated in the text of sec. 1880, 2 Mechem, Agency (2d ed.), is helpful in these cases. It is there said:

“Not every act which an agent or servant may do while he is in the place appointed for the service, or during the time in which he is engaged in the performance, can be deemed to be within the course of. the employment, or within the scope of the authority. The test lies deeper than that; it inheres in the relation which the act done bears to the employment. The act cannot be deemed to be within the course of the employment unless, upon looking at it, it can fairly be said to be a natural, not disconnected and not extraordinary, part or incident of the service contemplated.”

It is manifest that the arrangement between plaintiff and Reese to take plaintiff on the truck and give him a ride on this trip was a wholly disconnected act of Reese’s employment, and that Reese’s course of driving from the proper side of the road to the wrong side for the purpose of taking plaintiff on the trip was not a part or incident of the service involved in his employment, and therefore was an act outside of the course of his employment. The trial court properly held that plaintiff’s complaint should be dismissed.

By the Court. — The judgment appealed from is affirmed.