Firemen's Fund Ins. Co. v. Schreiber

CourtUnited States State Supreme Court of Wisconsin
Citation150 Wis. 42,135 N.W. 507
Decision Date03 April 1912

150 Wis. 42
135 N.W. 507


Supreme Court of Wisconsin.

April 3, 1912.

[135 N.W. 507]

Syllabus by the Judge.

In case of a bailment for hire, in general, the bailee is liable only for the exercise of ordinary care,--he is in no sense an insurer.

The measure of care called for by the foregoing rule is such as men, in general, of common prudence ordinarily bestow upon their own property similarly situated.

A contract of bailment, in the absence of special situations to the contrary, involves, by necessary inference, an understanding that the bailee may use the usual means of executing the agreement.

The rule last stated includes the privilege of employing assistants and delegating the work, in whole or in part, to them, being responsible for their conduct while acting within the scope of their employment and performing the duty of the principal.

The principal, in the circumstances of the last foregoing, is not an insurer as to the conduct of his employé. He is responsible for ordinary care in the selection of his agents, ordinary care as regards retaining them in his employ and responsible, respondeat superior, for all negligences and wrongful acts of the agent within the scope of the employment in the execution of the contract of bailment.

The rule may be stated, as commonly, thus: The master is liable for all acts of his servant while engaged in his master's business within the scope of such servant's authority in furtherance of such business; but, if he steps aside therefrom and proceeds to serve some purpose of his own, the master is not liable.

Departure of the agent from the scope of his employment to effect a personal purpose severs the connection between him, his principal and the latter's employer, rendering him, alone, liable for his wrongful conduct to such employer's damage.

If the agent, acting within the scope of his employment, performs the principal's duty in an unauthorized way to the damage of the latter's employer, such employer is liable therefor; but, if a wrong be done by the agent outside the scope of his employment to the damage of such employer, though perpetrated within the period of such employment and through capacity acquired by reason of the employment, such principal is not liable.

The doctrine respecting the liability of a railroad company for the conduct of its employés

[135 N.W. 508]

in the course of their employment, whether within the scope thereof or not as in Craker v. Railway Co., 36 Wis. 657, 17 Am. Rep. 504, does not rest on the principle of respondeat superior; it is a special liability grounded on absolute duty, and liability for the safety of passengers, as regards negligent acts of such employés in the course of their employment and does not apply to situations in general,--they are governed by the ordinary rule of respondeat superior.

To render the wrong of the agent that of the principal,--respondeat superior,--the fact that it was done in the course or period of employment is not sufficient; it must be in the prosecution of the principal's business, not by stepping aside therefrom to serve a personal end.

The element of “stepping aside,” mentioned in the last foregoing, which is essential to break the nexus between the principal, the agent and the employer of such principal, needs only change of mental attitude from that of serving the principal to that of serving a personal end; no particular interval of time is necessary.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by the Firemen's Fund Insurance Company against John F. Schreiber. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss the case.

Kerwin, Siebecker, and Timlin, JJ., dissenting.

Action to recover of a bailee for the wrongful act of his servant while in the line of duty.

Plaintiff insured one Schleisinger against damage to his automobile, while in use. The machine was kept in defendant's garage, he receiving $20 per month for housing and care. He had in his employ one Flynn whose duty it was to be at the garage at 6 o'clock p. m.,--the time for the day attendants to quit work,--and stay through the evening and into the night so long as necessary to do the work of washing automobiles and polishing the brass and nickel work and letting patrons in or out with their machines. His quitting time was from midnight to 4 or 5 o'clock in the morning, according to circumstances. While on duty he was the only attendant. Customarily he kept the door locked, but opened it from time to time to accommodate customers. Upon leaving the garage without any attendant it was his business to lock the door. On the occasion in question, about 1:30 a. m., having completed his work of washing and polishing, he left the garage to go to a nearby lunch counter. He had lost his key, so attached a wire to one of the upper door bolts, leaving the end outside, with which he could by pulling slide the bolt up and down and release the door. Upon going out he left his coat, intending to return and permanently close the place for the night. While at lunch he fell in with an acquaintance and they conceived the idea of taking the machine in question and having a ride. No one had a right to take out the machine without the owner's permission, which was not given. The two executed their plan and while using the machine within the risks insured against under the policy, injured it. Plaintiff was compelled to pay the loss. Thereupon it commenced this action upon the theory that defendant's servant wrongfully appropriated the machine, rendering both liable for damages. The facts stated were undisputed and within the issues made by the pleadings. At the close of the evidence a verdict was directed in plaintiff's favor.

Lyman G. Wheeler (R. S. Witte, of counsel), for appellant.

Richberg & Richberg, Stern & Williams, and Erich C. Stern (R. D. Stevenson, of counsel), for respondent.

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

At first impulse one might say that, in the circumstances of this case, the plaintiff ought to recover. A hasty decision might so lead. That is evident from the summary manner of the disposition below. However, upon reflection it would occur, as it seems, that the case is to be ruled by settled principles, not by mere impulsive thought as to what is right and what is wrong. Further thought and it would occur that the law as to such a situation must have been settled along reasonable and practicable lines, consistent with the necessary relations of members of a community to each other.

There must be masters and servants. One cannot do everything directly. He must needs employ assistants. That is expected by every one to whom he owes a duty, contractual or otherwise, as regards safety of persons or property. How far does that duty extend? Does it extend so far as to make every act of the servant while in the employ of the master, whether done by actual or implied direction or assent of the master,--for the servant's personal negligences and torts attributable to his own purpose as well as those occurring by excessiveness in doing what he is employed to do imputable to the master? If so, then the master must to all intents and purposes, be an insurer against conduct of his servant and under a very great risk from which he has no practicable way of escape by any degree of care he can personally exercise. The only way of escape would be to restrict his

[135 N.W. 509]

activities to his personal capacity. The learned trial court evidently went to the fullest extent of liability we have indicated.

The case presents these aspects: (1) What was the real scope of Flynn's employment? (2) Did it effectually terminate when he left the garage for his lunch so that when he returned with his friend, he did so rather as a stranger than an employé, though having opportunity by reason of his service to enter the garage? (3) Was he actually in the service of the defendant in charge of the garage at the time he took out the machine? That he had no authority from the master to take it out; that his act was not, even remotely, connected with anything he was authorized to do; that it was something neither authorized nor within reasonable anticipation from the standpoint of the master; that it was something any other lawless person might as well have done had he only possessed the easy means of entering the garage,--is not in dispute.

As we proceed with the case, it will be observed that whichever of the suggested situations may be the real one as to the facts, the legal result is substantially the same. It may be that the learned court below did not think otherwise; but whether a right result was reached is another thing. It may have been thought that the fact of Flynn having rightful access to the garage, regardless of any actual wrongful conduct on the part of appellant either in employing or retaining him, was sufficient. If not so thought, then the case went upon the idea of absolute responsibility for the conduct of Flynn while he was in charge of the garage. The vital contest below on the facts, as counsel viewed the matter, seems to have been as to whether Flynn was in charge of the garage when he took out the machine, or had practically left for the night and returned as a stranger, merely having means of making an entry without being a trespasser. The situation is presented in much the same way here. The real vital point in the matter, as we shall see, did not receive much, if any, attention.

From the foregoing, familiar and elementary as the law is in general, applicable to the responsibility of a master for the acts of his servants, either as regards the subject of a bailment for hire, as in this case, or otherwise, it seems best to refer thereto at some length. A branch of the law, however familiar, as it may seem to some, which has led to such divergence of thought between counsel and court, as here, may well be treated...

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