Youngquist v. L. J. Droese Co.

| Wis. | May 21, 1918

ViNJE, J.

If defendant’s contention that there is no evidence to show that tbe driver, Meyer, was acting within tbe scope of bis authority in taking plaintiff out on tbe Port Washington road is well taken, then tbe other errors complained of become immaterial. It is undisputed that defendant bad a license to run a jitney bus.on Pond du Lac avenue and nowhere else. There is evidence to show that tbe driver bad several times previous to tbe injury to plaintiff been out to tbe borne of tbe latter with tbe jitney bus, but no evidence to show that defendant knew of suck fact and nothing to charge it with notice thereof. Mr. Droese, on behalf of defendant, testifies that he did not know that the driver went out of his route; that about -three days prior to the accident he learned that Meyer had taken a Mr. Roberts outside of the route, and that he then told Meyer that he was not allowed to go outside of the route. He denies positively that he knew Meyer had been out on the Port Washington road, and he refused to receive the dollar paid by plaintiff for the trip, though that refusal was after he learned of the injury to plaintiff. It is in evidence that sometime in October the driver gave plaintiff a card stating: “Call for George Meyer, driver, Kilbourn 2100, L. J. Droese, 2010 Eond du Lac Avenue.” This we do not deem very significant because it fails to show it was done with defendant’s knowledge or consent. Such cards may have been used on the route with defendant’s consent, but there is nothing to show any authority to use them elsewhere.

It is elementary that in order to hold a master liable for the tort of a servant the latter must have been acting within the scope of his employment.when the tort was committed. The employment of the driver in this case was to run a jitney bus on Eond du Lac avenue. Neither the servant nor master had any license to run elsewhere. That was the only route permitted by the license; that was the route the defendant directed the driver to follow, and that was the only route it believed or had reason to believe he did follow. He was specifically instructed not to vary from it. It is needless to consider defendant’s liability in a case where he knew his servant departed from the route, for this is not such a case. Upon the whole evidence we are convinced that there is no basis therein for the finding of the jury that Meyer was acting within the scope of his employment in taking plaintiff to his home at the time of his injury.

By the Gowrt. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.