Kwiechen v. Holmes & Hallowell Co.

ELLIOTT, J. There is little serious controversy as to the facts. The action was brought by the appellant as the father of his minor child, Hstella Kwiechen, against the Holmes & Hallowed Company, a corporation, and Samuel V. Spears, to recover damages for personal injuries.' The jury returned a verdict against the defendant for $100. The plain — 150 — tiff made a motion on various grounds to set aside the verdict as to both defendants, and for a new trial. The motion was denied as to the Holmes & Hallowell Company, and granted as to Spears, unless he consented that the verdict against him should be increased to $350. This he did, and the motion was therefore denied. Thereafter, on motion of the Holmes & Hallowell Company, the court ordered judgment in its favor notwithstanding the verdict. From the judgment entered on this order, the plaintiff appealed to this court. The assignments of error are very numerous, but many of them need not be considered in view of the fact that we are satisfied that no cause of action was proven against the Holmes & Hallowell Company. At tlie time of the accident, the Holmes & Hallowell Company was engaged in the fuel business in the city of Minneapolis. The defendant Spears was employed by it to deliver coal to the company’s customers in the city. In making such deliveries, he used two teams, and was paid a stipulated sum per ton for coal delivered by his teams. The horses, harness, and bob sleds used in the work were owned and furnished by Spears, while the employer furnished the sled boxes, shovels, and chutes. Each team used by Spears .consisted of two horses, with the accompanying outfit. Spears employed and paid a man named Davis to drive one of the teams. Davis worked for Spears, and not for the company. The teamsters did not collect for the coal delivered. Spears also owned a fifth horse, which he had for some time been renting to another employee of the company, named Osterman, and this party had been using it in delivering coal under an agreement similar to that existing between Spears and the company. For about four weeks prior to the accident Spears had not used this horse himself. On the morning of February 6, 1907, Osterman brought the horse to the company’s yard for the purpose of returning it to Spears, and left it in one of the sheds, where it remained until near three o’clock in the afternoon. One of Spears’ teams, with a load of coal ready for delivery, was standing in front of the coal yard office, waiting until the proper ticket was made out for the driver. About four o’clock, Spears, being ready to start, took the extra horse and tied it to an iron brace on the. rear of the sleigh with a rope which was fastened to the horse’s halter. There was conflicting evidence as to the length of this rope, but it was evidently long enough — 151 — to permit the horse to have entirely too much freedom. It may be conceded that the horse was thus hitched in a careless and negligent manner, and as a result he was able to swing about and injure a person on the sidewalk. Hanson, the superintendent and general foreman for the company, was in the office when Spears started with the led horse, and saw wh^it occurred. While the team in this condition was passing along the streets of the city, something disturbed the led horse, and caused him to swing toward the sidewalk and kick a little girl who was standing there. Spears’ liability for the damage thus resulting stands conceded, and the question is as to the liability of his employer for his negligent act. Upon these facts the Holmes & Hallowell Company was not liable for the damage which resulted from the negligence of Spears. Whatever principles and reasons may have controlled the decisions of other courts, the rule of liability of a master for the torts of his servant is now so thoroughly settled in this state as to render elaborate discussion no longer necessary. It is possible that there has at times been some confused thinking, and it may be that no single principle has uniformly been stated as the controlling reason for every decision. However this may be, there is no ambiguity in the rule framed and stated by the Chief Justice in the recent case of Barrett v. Minneapolis, St. P. & S. Ste. M. Ry. Co., supra, page 51, 117 N. W. 1047. The rule is that a master is responsible for the torts of his servant done in the course of his emplojmient, with a view to the furtherance of his master’s business, and not for a purpose personal to himself, whether the same be done wilfully, but within the scope of his agency, or in exercise of his authority, or contrary to the express instructions of his master. Smith v. Munch, 65 Minn. 256, 68 N. W. 19; Larson v. Fidelity Mut. Life Assn., 71 Minn. 101, 73 N. W. 711; Lesch v. Great Northern Ry. Co., 93 Minn. 435, 101 N. W. 965; Crandall vBoutell, 95 Minn. 114, 103 N. W. 890; Merrill v. Coates, 101 Minn. 43, 111 N. W. 836; Anderson v. International Harvester Co., 104 Minn. 49, 116 N. W. 101. Applying the rule to the facts of the case at bar, we have but little difficulty in reaching the conclusion that the trial court properly ordered judgment to be entered in favor of the defendant company. Spears was employed by the company to deliver coal, and it was liable for his — 152 — torts committed in the course of his employment with a view to the furtherance of his employer’s business. But it was not liable for his torts when done for a purpose personal to himself. Spears was delivering coal for the company, but the leading of the extra horse had no connection with the performance of the duty which he owed to his employer. It was not connected in any manner with the duty of delivering the coal. The horse belonged to Spears. The company had no control over it. It had been rented, not by the company, but by Osterman. It had been used by Osterman, and not by the company. Osterman had returned it, not to the company, but to Spears. It was in the latter’s possession, and under his control, and in leading it home he was serving his own purpose solely. It is true it was attached to the team which he was using in the company’s business, but not in any auxiliary capacity. If the load had proven too heavy for the team to draw, and Spears had attempted in some way to use his extra horse to assist in drawing the load, we would have had a case of acting for the furtherance of the master’s business. But nothing of the kind was done. Beading the horse was an act entirely disconnected with the work Spears was doing for the company, not done or assumed to have been done with a view to aid or further that business. Spears was handling his own property, for his own purpose, in his own way, and was alone responsible for the results of the negligent manner in which he acted. This being true, the fact that Hanson stood by and did not interfere with Spears’ way of tying the horse is immaterial. The extra horse did not render the vehicle which was being used in the company’s business unsafe and dangerous, and with Spears’ own personal business Hanson had no concern. He was, therefore, under no obligation to superintend the hitching of the horse. But it is urged that the company became liable for the negligence of Spears because it retained him' in its employ after it had knowledge of this accident. The authorities do not sustain this contention. When there is no original liability for the act of a servant, because at the time of the negligence the servant was acting in his own personal business, the master does not become liable merely by reason of the fact that he thereafter retains the servant in his employ. The rule contended for by appellant would seem to render an employer liable — 153 — for every act of negligence of which he had knowledge which had been committed by the employee prior to the time when he employed him. The fact that an employee is retained after knowledge of a negligent act for which the master is already liable is sometimes important as bearing upon the right to recover exemplary damages, and this is evidently all the Wisconsin court intended to hold in Cobb v. Simon, 119 Wis. 597, 97 N. W. 276, 100 Am. St. 909. This appears with reasonable clearness from the final disposition of the case on a subsequent appeal (124 Wis. 467, 102 N. W. 891), and from the cases cited (Bass v. Chicago, 42 Wis. 654, 24 Am. 437; Robinson v. Superior, 94 Wis. 345, 68 N. W. 961, 34 L. R. A. 205, 59 Am. St. 897). Ratification may supply the want of original authority to act as the servant of another. Thus ratification of acts which another has without authority performed as his servant and for his benefit will render him liable for the latter’s negligent acts which were so connected with the employment that he would have been liable’ for them as master if the latter had been his servant when committing them. A., while delivering coal which had been ordered by B. from C., carelessly broke B.’s window, and it was found that A. was not C.’s agent when he broke the window, but, as the delivery of the coal by him was ratified by C., it was held that such ratification made A. the agent and servant of C. during the delivery of the coal, and that C. was therefore responsible for his negligence. Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279, 13 L. R. A. 219, 26 Am. St. 249. So in Nims v. Mount Hermon, 160 Mass. 177, 35 N. E. 776, 22 L. R. A. 364, 39 Am. St. 467, it was held that an educational institution that ratified the actions of persons who had assumed to operate a ferry for it thereby became liable for personal injuries to a passenger caused by the negligence of the ferryman. Ratification may thus supply the want of authority in a person who at the time of the negligent act was assuming to represent a master, but the principle cannot apply to a case such as the one at bar. Spears was not assuming to act as the servant of the company when he adopted this method of taking care of his own horse. Merely retaining Spears in its employ could not in itself create liability for acts which had been done by him while engaged in his own personal business, and when not assuming to represent the company. — 154 — It is also contended that the court erred in refusing to instruct the jury, as requested, that the plaintiff might recover against the company, if Spears, having a horse tied, as this one was, to the rear of the sleigh, drove the team too close to the curb, and by reason thereof the plaintiff was injured. This sounds plausible, but is essentially unsound. The team that was being used in the master’s business was properly driven, and the burden of liability cannot be shifted to the master because the servant, for some purpose of his own, renders the outfit unsafe under certain circumstances. The negligent manner in which Spears tied the horse to the company’s sleigh, and not the driving of the team, was the proximate cause of the injury. The instruction was properly refused. The assignments directed to the rulings and instructions as to the right of the defendant’s. attorney to comment on the failure of the plaintiff’s physician to testify that Spears had admitted that he was intoxicated, that an employer’s liability company was the real defendant, the excluding of the insurance policy with statements therein tending to show that Spears was in the employ of the company, and the reception of certain evidence tending to show the relation of the parties do not require consideration, as they relate to Spears’ personal negligence, the extent of the injury, and other matters affecting only the amount of the recovery. They are no longer of importance after it has been decided that no liability whatever existed on the part of the company. The ultimate result, so far as liability is concerned would have been the same had every such ruling been the other way. Judgment affirmed.