Steffen v. McNaughton

142 Wis. 49 | Wis. | 1910

SiebeokeR, J.

The questions as to the defendant’s liability which arise if it be assumed that the evidence permitted the inferences that the chauffeur’s negligence was the proximate cause of decedent’s injuries, and that she was free from contributory negligence, are these: First, Is an automobile per se a dangerous machine? And, secondly, Was the chauffeur acting within the scope of his employment while driving the car at the time of the accident ?

Upon the first inquiry we discover nothing in the construction, operation, and use of the automobile requiring that it be placed in the category with the locomotive, ferocious animals,, dynamite, and other dangerous contrivances and agencies. When properly handled and used, automobiles are as readily and effectually regulated and controlled as other vehicles in common use, and when so used they are reasonably free from dangers. The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles. It is well known that they are being devoted to and used for the purposes of traffic and as conveyances for the pleasure and convenience of all classes of persons and without menace to the safety of those using them or to others upon the same highway when they are operated with reasonable care. The defendant cannot therefore be held liable upon the ground that the automobile is a dangerous contrivance. This view has been adopted by the courts in the following cases: Slater v. Advance T. Co. 97 Minn. 305, 107 N. W. 133; McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433; Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057.

Whether tire chauffeur, at the time of the accident, was acting within the scope of his employment involves an inquiry into the contract of his employment and the relation of his acts at the time of the accident to the service he actually performed pursuant to his employment. The facts are that under his contract of service with John McNcmghton, the owner of the automobile and the defendant in this case, he was to care for and operate the machine at the request and direction of.the defendant or any member of his family; that he was to devote his time to the performance of such services during the day and was to perform the actual duties of a chauffeur; that the defendant did not undertake to furnish him his meals, and for his midday meal he was allowed to go to his home, about one mile distant from the defendant’s residence, where the automobile was kept; that he usually walked to his home for this meal; that he had used the automobile probably ten times to make this trip without obtaining the. permission or consent of the defendant or any member of his family so to do; that he so used the machine on the day in question; and that he passed in and out of the defendant’s premises adjacent to the house on such occasions, and that the defendant was at his home on some of them. The defendant testifies that he at no time gave permission to or authorized the chauffeur to so use the automobile and that he had no knowledge that it was being used by him for this purpose.

It is obvious from the conditions of the contract of employment that it did not embrace the use of the automobile by the chauffeur for going to his meals; and the question, therefore, is: Do the facts warrant the inference that this use of it by the chauffeur was, under the circumstances of the case, “a permissive privilege granted to [him], of which he availed himself, to facilitate his labor and service, and . . . equally connected with it and the relation of master and servant?” Ewald v. C. & N. W. R. Co. 70 Wis. 420, 428, 36 N. W. 15. It is strenuously urged that the evidence on this subject permits of such an inference. This contention is made on the grcrands that the chauffeur used this machine to further his master’s interests; that he thereby reduced the time for getting his meals and thus was able to devote more time to the service of the defendant; that the defendant gave him the control of the machine for the day without restriction, thereby enabling him to use it for this purpose; and that these and all the other conditions of his employment and service malee the use of the machine on these occasions one within the privileges of his service for facilitating his labor and service, thus bringing it within the scope and course of his employment. We are of opinion that the facts of the case do not permit of this inference. The conditions of the contract of employment, under which the chauffeur was to provide himself with meals, carried with it the further condition that he was to have the required time at noonday, and might leave the service for such a period of time as was required under the circumstances for this personal and private purpose. While he was so engaged his employment and the relation of master and servant were suspended for the time being, unless the facts of the case show that the defendant consented to the chauffeur availing himself of this use of the machine to facilitate his labor and service and in furtherance of the defendant’s interests. The evidence will not support this inference. It is reasonably clear and certain that the defendant by his words, acts, and conduct never gave consent or permission to, nor did the contract of employment authorize, such a use of the machine by the servant. The facts and circumstances fail to show that the chauffeur was performing an act in obedience to an order or direction of the defendant or a member of his family, or that he was doing something-with the implied consent of the defendant. The law governing the liability of a master for the acts of the servant in this class of cases is embodied in the following comprehensive-statement : ■ •

“Eor all acts done by a servant in obedience to the express orders or direction of the master, or in the execution of the master’s business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instruction given, and the circumstances-under which the act is done, the master is responsible.” Ritchie v. Waller, 63 Conn. 155, 160, 28 Atl. 30.

While the rule of such liability may readily be comprehended, its application to the varying facts in cases of this class is often attended with difficulty. The ultimate inquiry usually resolves itself into one of fact, under the particular evidential facts and circumstances of the case. Other cases, similar in their nature and circumstances, are of service as an aid to the court in ascertaining what conditions are deemed to he within or without this rule of liability. We cite the following as bearing on the subject: Joel v. Morison, 6 Car. & P. 501; Maddox v. Brown, 71 Me. 432; Slater v. Advance T. Co. 97 Minn. 305, 107 N. W. 133; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433.

Upon these considerations it must be held that the facts in evidence do not permit of the inference that the chauffeur at the time of the accident was acting in the execution of the defendant’s business, or that the defendant granted him the privilege of using the machine on this occasion to facilitate his labor and service; and that the acts of the chauffeur were not connected with his service and were not performed within the course of his employment.

This conclusion disposes of the ease, and no other question need be considered.

By the Cowrt. — Judgment affirmed.