Schulte v. Holliday

• Decision Date: 11 June 1884
• Citation: 19 N.W. 752,54 Mich. 73
• Court: Michigan Supreme Court
• Parties: SCHULTE v. HOLLIDAY.

19 N.W. 752

54 Mich. 73

SCHULTE v. HOLLIDAY.

Supreme Court of Michigan

June 11, 1884

In an action against a master for an injury done by his servant while driving a wagon, evidence that the master's name was upon the wagon used at the time of the accident is admissible to show the relationship of master and servant.

Evidence of the continued and notorious habits of a servant in doing his master's business, tends to show the master's knowledge of the acts and permission to do them, and is competent to show that the servant was acting within the scope of his employment.

Matters of belief are admissible in evidence to show the existence of a partnership, that question being material.

A married woman may recover the amount of a doctor's bill and the expenses of her sickness in an action against a master for an injury done by his servant.

Instructions examined, and held that the court properly refused to give them to the jury.

Error to superior court of Detroit.

Edward Minock, for plaintiff.

Barbour & Rexford, for defendant and appellant.

SHERWOOD J.

This is an action on the case, to recover damages for injuries to plaintiff occasioned by the negligence of the servant of the defendant in allowing his horse to run away in the city of Detroit, and against the wagon of the plaintiff in which she was riding, overturning the same, breaking her arm, and otherwise causing serious personal injuries to her. That the defendant left his horse standing in the street, unhitched at the time the injury occurred, is undisputed, and that he was accustomed to do so. Neither were the injuries claimed to have been received by the plaintiff contested. No question is made upon the pleadings.

The defenses set up were (1) that the driver, one Dubois, was not the servant of the defendant; and (2) he was not acting within the scope of his authority at the time the injury occurred, if he was the defendant's servant. Upon both these points the verdict of the jury was against the defendant, and unless there was something wrong in the rulings of the court upon the trial, or in charging the jury the judgment should not be disturbed.

The plaintiff showed, against the objection of defendant's counsel of immateriality and irrelevancy that the name of defendant's firm was upon the wagon which the servant used on the occasion of the injury. There was no error in this. It was proper to identify the horse and vehicle used by defendant at the time. The plaintiff was permitted to prove that Dubois was in the habit of leaving his horse unhitched in the street, and that he was also in the habit of driving the horse to the same place where he left him on the day the injury occurred, and leaving him unhitched while he was taking his meals. We can see no objection to this testimony. The long-continued and notorious habit of the servant in doing his master's business, is, at least, some testimony tending to show knowledge and permission, if not approval, by the master, and as such was competent in this case. It further tended to show him acting within the scope of his employment.

E.P Zerbe, a witness for plaintiff, testified, in substance,...