Morman v. Wagner

• Decision Date: 15 July 1935
• Docket Number: 7751.
• Citation: 262 N.W. 78,63 S.D. 547
• Parties: MORMAN v. WAGNER.
• Court: South Dakota Supreme Court

262 N.W. 78

63 S.D. 547

MORMAN v. WAGNER.

No. 7751.

Supreme Court of South Dakota

July 15, 1935

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Action by J. H. Morman, as special administrator of the estate of Elizabeth Morman, deceased, against C. A. Wagner. Judgment for defendant, and plaintiff appeals.

Affirmed.

B. O Stordahl, of Sioux Falls, for appellant.

Dougherty & Flood, of Sioux Falls, for respondent.

WARREN Presiding Judge.

Plaintiff brought this action to recover $10,000 damages for the death of a minor daughter, Elizabeth Morman. A verdict having been returned in favor of the defendant Wagner, and a judgment entered thereon, plaintiff has appealed.

Briefly the facts in this case are as follows: C. A. Wagner owned a dairy farm in Minnehaha county, S.D. His actual profession was that of a contractor. He did not live on the farm, but hired one Virgil Comeau and his wife to manage the dairy farm. The Comeaus occupied the unfurnished dairy farm residence for which they paid no rent. Comeau supplied board and room to the hired hands who worked on the farm, for which Wagner paid him a stipulated amount per month for each hired man. The Comeaus themselves hired one Gladys Morman to assist with the housework and cooking, paying her wages out of their own funds. During the course of the summer, Elizabeth Morman Gladys' sixteen year old sister, came to the dairy farm to spend a few days. Whether she came as an invited guest or to assist her sister with the housework is in dispute. One evening shortly after her arrival Joe Barenklau, one of the farm hands, wished to shave and preparatory thereto brought an open pail of gasoline into the kitchen to fill the gasoline (pressure) stove. Immediately upon his attempt to fill the tank an explosion occurred which took the lives of Elizabeth Morman and the two small Comeau children and seriously injured Gladys Morman and Joe Barenklau. The stove which caused the explosion had formerly been purchased by Wagner for use in the milk shed located in the barn. During the extremely hot weather, Mrs. Comeau caused the stove to be brought into the kitchen to replace her kitchen range.

Appellant contends that Elizabeth Morman was an invitee at the Wagner dairy farm. The conclusion which we shall presently reach regarding respondent's responsibility for the torts of his farm hand will eliminate the question of Elizabeth Morman's presence as an invitee.

It is appellant's contention that Wagner is responsible for the torts of his farm hand, Joe Barenklau. An examination of the facts shows that Barenklau had finished his work in the field and had eaten his supper. Wanting hot water with which to shave before going away in the evening and observing that the gasoline tank of the stove was empty, he proceeded to get gasoline with which to fill it. No one asked him to fill the tank and his doing so was of his own free will and in no way connected with his work for the respondent Wagner. The cases are innumerable which hold that a master cannot be held liable for his servant's acts or negligence beyond the scope of his employment, even though the injury could not have been committed without the facilities afforded to the servant by the master. In the case of Kish v. California State Automobile Association, 190 Cal. 246, 212 P. 27 it was held that to determine whether or not a particular act was done in the course of the servant's employment, the act of the servant must be connected directly or indirectly with the business of the employer and be in furtherance of the object for which the servant was employed. In other words, if the act is for the benefit of the employer, either directly or indirectly, the act is within the general scope of the servant's employment, but if the act performed is not in any way connected with the service for which he is employed, but for his own particular and peculiar purposes, then the act is not within the scope of the employment.

In Stewart v. Lafoe, 194 Ky. 655, 240 S.W. 57, 58, the court said in part: "The master is not responsible for the wrongful act or negligence of the servant, unless the act be done or negligence result in execution of the authority express or implied, given by the master. Beyond the scope of his employment the servant is as much a stranger to his master as any third person; and the act of the servant, not done in the execution of the service for which he was engaged,...