173 Wis. 33 | Wis. | 1920
It appears that about 11 o’clock in the evening of October 16, 1918, a couple of men applied at defendants’ garage and office for a car or cab in which to ride around the city. Defendants sent one of their drivers, Haase, to take the men around the city, and, as they claim, instructed him not to leave the city. Haase took them from saloon to saloon and drove them to Cudahy and' further south. He claims he was directed by them to do so, and also claims he got lost. When they reached Kenosha the men jumped out, and, without paying the cab hire, told Haase to “beat it home.” On his way back he collided with the Smith automobile.'
It is claimed that since Haase disobeyed instructions in taking the men out of the city'he was outside the scope of his employment, and the cases of Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016; Gewanski v. Ellsworth, 166 Wis. 250, 164 N. W. 996; and Youngquist v. L. J. Droese Co. 167 Wis. 458, 167 N. W. 736, are especially relied upon to sustain the claim. If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master the doctrine of respondeat superior would have but scant application, for the master could always instruct his servant to use ordinary care under all circumstances. The servant’s negligence would therefore always be contrary to orders and the nonliability of the master would follow. But such is not the law. The servant is within the scope of his employment when he is engaged in the master’s service and furthering the master’s business though the particular act-is contrary to instructions. The
In the present case Haase was, even under defendants’ claim, furthering their business. lie was driving for hire to be paid them. That it was not paid is immaterial. The cases relied upon by the defendants are therefore not applicable. In the Steffen Case the servant was using the automobile to get his dinner. ' Under, the terms of the service he was then not in the master’s employ at all. So in the Gewanski Case, the automobile was used by the servant in going home in the evening after his employment had ceased; and in the Youngquist Case the servant, without knowledge of the master, had taken the automobile for a trip of his own. In these cases the servants were not engaged in the master’s business at all. This is not such a case.
Counsel for plaintiffs called one Kersey, under sec. 4068, Stats., who had interviewed the plaintiffs in regard to the accident and who was believed to have made a report thereon to some one. He was asked, “Are you an agent of the Yellow Cab Company? A. No, sir. Q. Are you an employee of the Yellow Cab Company? A. Indirectly. Q.
It remains to determine if the error is so prejudicial as to call for reversal. In the case there were but two important questions, namely, Was Haase within the scope of his employment? and, if so, What were plaintiffs’ damages? The former is a question of law from undisputed facts, and if the jury had answered it otherwise than it did the answer could not stand. The error therefore did not prejudicially affect the question of liability. As to damages it appears that the jury assessed Mrs. Smith’s damages to her person at $250 and to her automobile at $800. These
An examination of the evidence as to the injury resulting to Mr. Smith from the collision satisfies us that the damages awarded were not excessive. The trial court approved of the award and .we cannot disturb it.
By the Court. — Judgment affirmed.