Brohl v. Lingeman

Campbell, C. J. Plaintiff sued defendant for injuries sustained from her being run against by his wagon. The declaration charged the wrong to have been done directly by defendant in some of the counts, and in one count described the wagon as driven by his son as his agent and servant. The testimony showed the son to have been the acting party, and the wagon and horses to have belonged to defendant. But there was no testimony showing any actual service or agency, and none showing such relation as in any way raised a presumption that the son was in the father’s employment, or even under his control, in this matter or generally. There was nothing to go to the jury. The case cannot be distinguished from Ricci v. Mueller, ante, p. 214. It seems to have been assumed on the trial that the ■jury could be expected to know all about the family relations of the parties concerned, but whatever may have been their general knowledge of their neighbors’ concerns, the knowledge on which cases are disposed of must come from testimony which here was lacking. The court ruled correctly that no cause of action was made out. The judgment must be affirmed with costs. The other Justices concurred.