Bloom v. Krueger

• Citation: 182 Wis. 29,195 N.W. 851
• Parties: BLOOM v. KRUEGER.
• Decision Date: 13 November 1923
• Court: United States State Supreme Court of Wisconsin

182 Wis. 29

195 N.W. 851

BLOOM

v.KRUEGER.

Supreme Court of Wisconsin.

Nov. 13, 1923.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by Joseph Bloom against W. H. Krueger, a sole trader, doing business under the name of the W. H. Krueger Motor Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Appeal from a judgment of the circuit court of Milwaukee county, Hon. Gustav G. Gehrz, judge, in favor of the plaintiff, in a personal injury action.

The defendant is engaged in the automobile business at Milwaukee, and in the year 1921 employed one Parris as a car washer and a general handy man. It was customary for Parris, who was allowed 30 minutes for lunch, to carry the same with him and eat it at the place of his employment; and it also appears that on numerous occasions he resumed his employment before the expiration of his lunch period. Some considerable time prior to the accident Parris had, on a number of occasions, with the express or implied consent of his foreman, used one of defendant's service trucks in going to his home for the purpose of eating his lunch, and he testified that on the day of the accident he failed to carry his lunch with him, and that, with the tacit assent of his foreman he made use of the defendant's truck. While returning from his home to his place of employment the truck collided with the plaintiff, and the latter charged the defendant with negligence which proximately contributed to the injuries which the plaintiff sustained. The defendant in his answer denied the charge of negligence, and alleged that at the time of the accident the truck was not operated by his employee Parris within the scope of his employment, and that such operation did not facilitate the master's business, but that the truck was solely used by the employee for his individual benefit.

The case was submitted to the jury upon a special verdict consisting of ten questions, all of which were answered favorably to the plaintiff. To the first question of the special verdict, viz. “Was Ellis Parris at the time of the collision, using defendant's truck with the knowledge and consent of the defendant?” the jury answered, “Yes”; and to the second question, “Was Ellis Parris at the time of the collision, using said truck within the scope of his employment by the defendant, and to facilitate the latter's business?” the jury also answered, “Yes.”

The defendant's counsel thereupon moved to change the answers of the jury to questions 1 and 2 from “Yes” to “No,” and for judgment dismissing the plaintiff's complaint with costs, and the plaintiff moved for judgment on the verdict. Defendant's motion was denied, and plaintiff's motion was granted, and the refusal of the court to grant defendant's motion is assigned as one of the errors complained of.

The foregoing comprises the evidence most favorable to the plaintiff upon the issue considered and treated in the opinion.

McMahon, McMahon & Hayes, of Milwaukee, for appellant.

Robert A. Hess, of Milwaukee, for respondent.

DOERFLER, J. (after stating the facts as above).

During the lunch period the relationship of master and servant between the defendant and Parris was suspended, and the employee was at liberty to utilize his time solely for his own individual benefit and purposes. In other words, the lunch time was the employee's time, and not the employer's. It is true that the evidence shows that Parris as an employee was exceptionally loyal and devoted to his employer's interests, and that upon numerous occasions he...