Dwyer v. Am. Express Co.

• Decision Date: 10 October 1882
• Citation: 55 Wis. 453,13 N.W. 471
• Parties: DWYER v. AMERICAN EXPRESS CO.
• Court: Wisconsin Supreme Court

55 Wis. 453

13 N.W. 471

DWYER

v.AMERICAN EXPRESS CO.

Supreme Court of Wisconsin.

Filed October 10, 1882.

Appeal from circuit court, Winnebago county.

James Freeman, for appellant.

Weisbrot & Harshaw, for respondent.

TAYLOR, J.

This action was brought to recover damages for an injury received by the plaintiff while in the employ of the defendant company, and which he alleges was the result of the carelessness of the defendant's agent. The complaint of the plaintiff was demurred to for the reason that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and from the order sustaining the same the plaintiff appealed to this court. The following is a copy of the complaint: “The plaintiff complains and alleges: That the defendant is a foreign corporation, duly incorporated and doing business in the state of Wisconsin, engaged in transporting money, goods, wares, and merchandise, for hire, from place to place; that said defendant has an office in the city of Oshkosh, Winnebago county, Wisconsin, and has had for the past 15 years; that one W. Colvin is now, and has been for the past 15 years, agent and manager of the said company's office in the city of Oshkosh, in the county and state aforesaid; that the plaintiff has been engaged and employed by the said defendant in their office, in the city of Oshkosh, aforesaid, for the past 14 years, and was so employed and working for said defendant on the twenty-third day of June, 1881; that said defendant received money, goods, wares, and merchandise at its office in said city, from the railroads entering said city, and from merchants, bankers, and other persons, and transferred the same to and from the railroad offices in said city in wagons owned and operated by said defendant; that the plaintiff's duty was to go to and from the said railroad offices and said defendant's office with said wagons, receive, load, and unload goods, wares, and merchandise upon and from said wagons of the said defendant, so used and engaged in transferring goods, wares, and merchandise from the railroads and the office of the said defendant; that on the twenty-third day of June, 1881, while so engaged and employed in going from the office of the said defendant to the depot of the Chicago & Northwestern Railroad Company with a load of goods, wares, and merchandise then being transferred from the said defendant's office, in the said defendant's wagon, which wagon was then being driven and managed by the said W. Colvin, agent and manager of the said defendant, this plaintiff being upon said wagon by direction of said W. Colvin, was, on said twenty-third day of June, 1881, by reason of the careless, negligent, and unskillful driving and management of the said wagon by the said Colvin, thrown from said wagon to the ground, without any fault or negligence on his part, at the corner of Tenth and Kansas streets, and a part of the load upon said wagon thrown onto him, and his left ankle crushed and broken, by means whereof the plaintiff was made to suffer great bodily pain, and for a long time was made sick and unable to labor, and was confined to his bed and house, and is still unable to labor, and still suffers great bodily pain from said injury. Wherefore the plaintiff demands judgment against the defendant for the sum of $5,000.

Upon the argument in this court the learned counsel for the appellant insists that the complaint shows that Colvin, who is designated in said...