Smith v. Yellow Cab Co.

• Decision Date: 14 December 1920
• Citation: 173 Wis. 33,180 N.W. 125
• Parties: SMITH ET UX. v. YELLOW CAB CO. ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 33

180 N.W. 125

SMITH ET UX.

v.YELLOW CAB CO. ET AL.

Supreme Court of Wisconsin.

Dec. 14, 1920.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Consolidated actions by Flora D. Smith and by Hiram J. Smith, her husband, against the Yellow Cab Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Actions by husband and wife, consolidated, to recover for personal injuries and for damages to Mrs. Smith's automobile, sustained in a collision with defendants' automobile. The jury found that the driver of defendants' automobile at the time of the collision was acting within the scope of his employment, and that Mr. Smith sustained damages in the sum of $3,000. Other findings are not challenged. Defendants appealed from a judgment in favor of plaintiffs, because they claim there is no basis for the finding that their driver was within the scope of his employment at the time of the collision, because the damages to Mr. Smith are excessive, and because of error in receiving incompetent and prejudicial evidence.Raymond J. Cannon, of Milwaukee (J. Elmer Lehr, of Milwaukee, and Storms, Foley & Beck and W. W. Storms, all of Racine, of counsel), for appellants.

Simmons & Walker, of Racine, for respondents.

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

[1] It appears that about 11 o'clock in the evening of October 16, 1918, a couple of men applied at defendants' garage and office for a car or cab to ride around the city in. Defendants sent one of their drivers, Haase, to take the men around the city, and, as they claim, instructed him not to leave the city. Haase took them from saloon to saloon, and drove them to Cudahy and further south. He claims he was directed by them to do so, and also claims he got lost. When they reached Kenosha, the men jumped out, and, without paying the cab hire, told Haase to “beat it home.” On his way back he collided with the Smith automobile.

It is claimed that, since Haase disobeyed instructions in taking the men out of the city, he was outside the scope of his employment, and the cases of Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227,Gewanski v. Ellsworth, 166 Wis. 253, 164 N. W. 996, and Youngquist v. L. J. Droese Co., 167 Wis. 458, 167 N. W. 736, are especially relied upon to sustain the claim. If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master, the doctrine of respondeat superior would have but scant application, for the master could always instruct his servant to use ordinary care under all circumstances. The servant's negligence would therefore always be contrary to orders, and the nonliability of the master would follow. But such is not the law. The servant is within the scope of his employment when he is engaged in the master's service and furthering the master's business, though the particular act is contrary to instructions. The purpose of the service rendered by the employé, and not the method of performance, is the test of whether or not the servant is within the scope of his employment. If the purpose is to further the master's business, and not that of the servant, the latter is within the scope of his employment, though he be negligent, or disobeys orders as to the method of its execution. Wilson v. Noonan, 27 Wis. 598;Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304, 80 Am. St. Rep. 47;Cobb v. Simon, 119 Wis. 597, 97 N. W. 276, 100 Am. St. Rep. 909;Johnston v. Chicago, St. P., M. & O. Ry. Co., 130 Wis. 492, 110 N. W. 424;Schultz v. La Crosse City R. Co., 133 Wis. 420, 113 N. W. 658;Daley v. Chicago & N. W. Ry. Co., 145 Wis. 249, 129 N. W. 1062, 32 L. R. A. (N. S.) 1164;Ratcliffe v. Chicago, M. & St. P. R. Co., 153 Wis. 281, 141 N. W. 229;Gray v. Chicago & N. W. Ry. Co., 153 Wis. 637, 142 N. W. 505;Oakes v. Marshall-Wells Hdw. Co., 158 Wis. 165, 147 N. W. 832.

In the present case Haase was, even under defendants' claim, furthering their business. He was driving for hire to be paid them. That it was not paid is immaterial. The cases relied upon by the defendants are therefore not applicable. In the Steffen Case the servant was using the automobile to get his dinner. Under the terms of the service he was then not in the master's employ at all. So in the Gewanski Case the automobile was used by the servant in going home in the evening after his employment had ceased, and in the Youngquist Case the servant, without knowledge of the master, had taken the automobile for a trip of his own. In these cases the servants were not engaged in the master's business at all. This is not such a case.

[2][3] Counsel for plaintiff called one Kersey, under section 4068, who had interviewed the plaintiffs in regard to the accident, and who was believed to have made a report thereon to...