Schaefer v. Osterbrink

• Citation: 67 Wis. 495,30 N.W. 922
• Parties: SCHAEFER, ADM'R, ETC., v. EVERHART OSTERBRINK, IMPLEADED, ETC. SCHAEFER, ADM'R, ETC., v. HENRY OSTERBRINK, IMPLEADED, ETC.
• Decision Date: 14 December 1886
• Court: United States State Supreme Court of Wisconsin

67 Wis. 495

30 N.W. 922

SCHAEFER, ADM'R, ETC.,

v.EVERHART OSTERBRINK, IMPLEADED, ETC.

SCHAEFER, ADM'R, ETC.,

v.HENRY OSTERBRINK, IMPLEADED, ETC.

Supreme Court of Wisconsin.

December 14, 1886.

Appeal from circuit court, Marathon county.

Action to recover damages for personal injuries resulting from negligent driving.

This action was commenced by Louis Schaefer, a minor, by his guardian August 15, 1885, against Everhart Osterbrink and Henry Osterbrink jointly, upon a complaint, alleging, among other things, in effect, that December 25, 1884, while Louis was riding in a sleigh along in the public highway, with his father, the present plaintiff, drawn by a span of small ponies, the defendant Henry, son of the defendant Everhart, while in the employ of, and acting as the agent and servant of, said Everhart, and with his sanction and authority, and within the scope of his authority, drove a span of horses and sleigh belonging to said Everhart along said public highway, behind the sleigh in which said Louis was then riding, so carelessly, negligently, and recklessly that the horses and sleigh of the defendants went against said ponies and said sleigh in which said Louis was so riding, with such force as to crowd the ponies out of the road, and cause them to leap from said road, thereby causing said sleigh, in which said Louis was then so riding, to suddenly tip nearly over, whereby said Louis was thrown from said sleigh to the ground with such force and violence as to fracture, break, mangle, and bruise one of his legs in such a manner as to necessitate amputation, whereby said Louis was otherwise seriously injured in body and health, to his great damage, etc. The defendant Everhart separately answered by a general denial. The defendant Henry separately answered, denying that he was, at the time in question, such agent, servant, or acting under the authority of said Everhart; and alleged, in effect, that, at the time and place in question, the plaintiff, the father of Louis, drove his team up in the rear of Henry, in a furious and reckless manner, and attempted to run by the defendant's team, and in doing so ran into a ditch and was upset; and, if Louis was injured at all thereby, it was caused by his own negligence, or the negligence of his said father; and further denied everything not admitted.

At the close of the trial, the jury returned a special verdict, to the effect (1) that the age of Louis, at the time of the accident, was 19 years; (2) that the age of Henry, at that time, was about 20 years; (3) that, prior to that time, Henry had been in the habit of driving his father's team to and from church, and elsewhere upon the road, with his father's permission, (4) and was, on the day in question, driving such team in accordance with his previous custom, and as his father's servant; (5) that on the day in question, and during Everhart's absence, (he was at the time absent in Germany,) his daughter, Mrs. Edenhofer, was in general charge of Everhart's family, farm, and property thereon; (6) that the conduct of Henry, in attempting to and driving past the Schaefers at the place and in the manner he did, was not reasonably prudent and careful under all the circumstances, (7) but was careless and negligent, (8) and such careless and negligent conduct of Henry was the proximate or direct cause of the accident; (9) that Louis' father was not guilty of negligence in driving or managing his team at the time; (11) that Louis was damaged by the accident in the sum of $1,000; (12) that Louis was entitled to recover damages from the defendants jointly, (13) but not against Henry alone; (14) that they assess Louis' damages at $1,000. December 8, 1885, judgment was entered, upon the special verdict in favor of Louis, by his guardian, and against both defendants. Louis having subsequently died, and the plaintiff, his father, having been appointed his administrator, the action was, by an order of the court made July 10, 1886, revived and continued in the name of the plaintiff as such administrator. Thereupon the defendants separately appealed from said judgment.

John Livermore and C. F. Eldred, for respondent, Schaefer, Adm'r, etc.

Bardeen, Mylrea & Marchette, for appellants, Osterbrink and another, impleaded, etc.

CASSODAY, J.

1. Exception was taken to the admission of evidence. It was certainly competent for the plaintiff to prove that prior to the accident Henry had been in the habit of driving his team to church and elsewhere, and the extent and character of the driving, as bearing upon the nature of his service, and the scope of his authority from his father. It was also competent to show the disposition of the team as to racing; that, prior to the accident, it would, when driven up behind another team, and turned to go by, shoot ahead like an arrow, and that the team had been trained to go in that way. We see no objection to proving that the team acted the same way a few days after the accident. Here the evidence was substantially of that nature, and most of it related to the conduct of the team prior to the accident. The case is unlike the attempt to prove an individual to be habitually careless or reckless, as in Brennan v. Friendship, 29 N. W. Rep. 902;Whitney v. Gross, 5 N. E. Rep. 619. One of the questions put to a witness, standing alone, might seem at first to come within the objection, but, when taken with the balance of his testimony, it clearly related to the habits of the team under the training of Henry, apparently with the consent of his father, and consequently was admissible, within the rule sanctioned in Hoverson v. Noker, 60 Wis. 513; S. C. 19 N. W. Rep. 382.

2. Exception was taken because the court refused to submit to the jury a question as to whether Henry's conduct, at the time and place in question, was such as to frighten the plaintiff's team, and, if so, whether such conduct was in that respect willful; and because the court refused to instruct the jury, in effect, that, if such conduct of Henry was willful, then the plaintiff could not recover as against Everhart. The question of the master's liability for the willful misconduct of his servant, acting in the course of his employment, was fully discussed, and, as we think, settled, in Craker v. Chicago & N. W. R. Co., 36 Wis. 657;Bass v. Chicago & N. W. R. Co., 42 Wis. 654.

As to whether the master was liable for the willful misconduct of the servant in such case, it was said, in the Craker Case, on the part of the court, that “the true distinction ought to rest, it appears to us, on the condition whether or not the act of the servant be in the course of his employment.” True, it was there said, that, “however that may be in general, there can be no doubt of it in those employments in which the...