Parker v. Barber

The following opinion was filed May 9, 1922: Crownhart, J. The finding of the jury as to the damages, and the negligence of the defendant Forcier and the freedom from negligence of the plaintiff, are not in dispute. The sole issue is whether or not the defendant Forcier was acting within the scope of his employment with the defendant Barber at the time of the accident. The defendant Forcier was the principal witness, and the only witness on this question. The defendant Barber did not testify. Forcier testified repeatedly that it was necessary to test out the car and that he made the trip for that purpose ; that it was a part of his duties to. keep the car in repair, to overhaul it prior to the return of Barber, and that he was making the test at the time of the accident. He repeatedly said that the primary purpose of the trip was to make the test, and but for the necessity of testing the' car he would not have made the trip. On the other hand, he admitted that one of the reasons for making the trip at the particular time that he did, and for taking the particular route that he did, was his desire to call on his friend at Chippewa Falls. On this state of the testimony it is clear that it presents a question for the jury. There does not appear to be any error in the submission of the- case to/the [591] jury, and hence the verdict of the jury and the- judgment thereon must be affirmed. By the Court. — Judgment affirmed.