Hiroux v. Baum

• Decision Date: 01 December 1908
• Citation: 137 Wis. 197,118 N.W. 533
• Parties: HIROUX v. BAUM ET AL.
• Court: Wisconsin Supreme Court

137 Wis. 197

118 N.W. 533

HIROUX

v.BAUM ET AL.

Supreme Court of Wisconsin.

Dec. 1, 1908.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Michael Hiroux against John Baum and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The plaintiff was at work sweeping one of the streets in the city of Green Bay, Wis., and was run into and injured by an automobile owned by appellant, John Baum. The appellant purchased the automobile a few days before the time of the accident, and had an understanding with Mr. Lucia, one of the members of the firm from whom the machine was purchased, that he would instruct the appellant's son, Cecil Baum, to run it. At the time of the injury Mr. Lucia and Cecil Baum were out with the machine, and Cecil was running it. Defendant Cecil was 17 years of age, living with his father, who was a merchant doing business in Green Bay, and occasionally worked in his father's store. The complaint charges defendants with negligence, and that the defendant Cecil was acting as the agent and servant of the defendant John Baum, and that said Cecil, while in the employ and acting as the agent and servant of John Baum, and with his sanction and authority drove an automobile belonging to the defendant John Baum carelessly and negligently, and ran into plaintiff, causing the injury. The defendant John Baum answered by general denial, and the defendant Cecil answered by his guardian ad litem, admitting that plaintiff was employed as a street sweeper by the city of Green Bay, and was at the time of the accident sweeping Main street, and was thrown upon the ground in the street, and that defendant Cecil is the son of defendant John Baum, and denied the other allegations of the complaint. The jury returned the following verdict: “(1) Was Cecil Baum the servant and agent of the defendant John Baum in running the automobile at the time the plaintiff was injured? Answer. Yes. (2) If you answer the first question yes, then answer this: Was Cecil Baum acting within the scope of his employment while driving the automobile at the time of the injury? Answer. Yes. (3) Was Cecil Baum wanting in ordinary care in driving and managing the automobile prior to and at the time it struck the plaintiff? Answer. Yes. (4) If you answer the third question yes, then answer this: Was such want of ordinary care the proximate cause of the plaintiff's injury? Answer. Yes. (5) If your answer to the third question should be yes, than answer this: Did any want of ordinary care on the part of the plaintiff contribute to his injury? Answer. No. (6) What amount of money would compensate the plaintiff for his injury? Answer. Twelve hundred ($1,200) dollars.” The usual motions were made to amend the verdict, for judgment in favor of the defendant John Baum upon the verdict as amended, for judgment notwithstanding the verdict, and for a new trial, which motions were denied, and due exceptions taken. Exceptions were also duly filed to the charge of the court to the jury. Judgment was entered in favor of the plaintiff upon the verdict, from which this appeal was taken.Aarons & Niven, for appellants.

Kittell & Burke, for respondent.

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

The plaintiff's theory of the case upon the trial below was that Cecil Baum was the agent or servant of appellant, and therefore the appellant was liable for Cecil's torts. The jury found for plaintiff upon that issue, and the question arises whether such finding has support in the evidence. It is insisted by appellant that it has not. There is evidence tending to prove that Cecil was 17 years of age, lived with his father, occasionally worked in his father's store, but received no compensation for his services; that appellant bought the automobile from Lucia Bros. mainly upon the solicitation of his son Cecil about a week before the injury; that it was understood between appellant and Cecil, that the latter should learn to run the automobile or car so purchased and teach the other members of the family to run it, or run it for their benefit; that by agreement between appellant and Lucia the latter was to teach Cecil to run the car, and it was understood, by arrangement between appellant and Cecil, that Cecil was to have the right to take the car whenever he had time, and, with the aid of Lucia, learn to run it. On the day in question Cecil took the car, and at his request Lucia went with him to teach him to run it, and after going a considerable distance, Lucia turned the car over to Cecil to run, and Cecil was running it at the time of the injury; that from the time of the purchase the car was owned and controlled by appellant, and at the time of the injury was in the possession of Cecil, with the consent of appellant, for the purpose of learning to operate it under instructions from Lucia. The jury would be entitled to find the foregoing facts from the evidence. If Cecil was running the car by authority from appellant, that would be sufficient to make a prima facie case of master and servant. Gerhardt v. Swaty et al., 57 Wis. 24, 14 N. W. 851;Schaefer v. Osterbrink et al., 67 Wis. 502, 30 N. W. 922, 58 Am. Rep. 875;Davis v. Dregne et al., 120 Wis. 63, 97 N. W. 512;Stewart v. Baruch, 103 App. Div. 577, 93 N. Y. Supp. 161. The foregoing cases are quite analogous in principle to the one before us, and we think support the ruling of the lower court that the evidence was sufficient to warrant the findings of the jury. On the question of the agency of Cecil we are cited by counsel for appellant to Kumba v. Gelham, 103 Wis. 312, 79 N. W. 325,Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477, and Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336. In Kumba v. Gelham, supra, the son was clearly acting beyond the authority or direction of the father, and contrary to his desire. In Winkler v. Fisher, supra, the son disobeyed the express instructions of the father, and was not at the time of the injury in his father's employ in any sense whatever, but was acting contrary to his instructions. In Maddox v. Brown, supra, the son took his father's horse on business exclusively of his own, and without the knowledge of the father. The boy was in no way executing the orders of his father.

It is further insisted that Cecil was not the servant of appellant, but the servant of Lucia, an independant contractor, and Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58,Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030,Bauer v. Richter et al., 103 Wis. 412, 79 N. W. 404,Smith v. Milwaukee, B. & T. E., 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912,Salliotte v. King, ...