November 4, 1941 —
December 2, 1941.
APPEAL from an order of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Reversed.
For the appellant there was a brief by Schubring, Ryan, Petersen Sutherland of Madison, and oral argument by R. J. Sutherland.
For the respondent there was a brief by Hall, Baker Hall of Madison, and oral argument by Laurence W. Hall.
Action by Clarence Linden, plaintiff, against City Car Company, a corporation, defendant, to recover damages sustained by plaintiff as a result of an assault and battery upon plaintiff by an agent of defendant.
The complaint alleges that plaintiff, a redcap in the employ of the Chicago North Western Railway Company was, on November 10, 1940, engaged in handling personal baggage of passengers on the railroad and particularly in escorting a woman passenger from the station to the taxicab stand to obtain a taxicab for her transportation from the station. Plaintiff further alleges that he approached a certain taxicab owned and operated by defendant and in charge of an employee named Kilgore; that the passenger, for the reason that the taxicab was already occupied, refused to enter it and directed the plaintiff to an adjoining cab; that while plaintiff was in the process of moving said passenger and her luggage to the other taxicab Kilgore, enraged over the refusal of the passenger to ride in his cab, assaulted and beat plaintiff, whereby plaintiff sustained serious personal injuries.
The complaint further alleges that defendant and other taxicab companies are engaged in vigorous competition in the city of Madison and especially in the vicinity of the Chicago North Western Railway Company, and for a long time prior thereto permitted drivers, agents, and employees actively to solicit business. On information and belief it is alleged that defendant maintained such a meager scale of wages and other payments as to directly cause the employees to enter into active competition for business in order to make a livelihood; that defendant had been a leader in promoting reduction of taxicab rates and in stimulating competitive activities of drivers.
Plaintiff further alleges that defendant, in the exercise of ordinary care knew, or should have known, that Kilgore, by reason of a former criminal record and previous conduct, temper, and disposition, was a person likely to create an affray or breach of the peace.
To this complaint defendant filed a general demurrer which the trial court, by the order appealed from, overruled. In its memorandum the trial court was of the view that, except for those paragraphs of the complaint reciting the competitive policy of defendant and the inciting of employees to actively compete for business, together with the paragraph alleging that defendant knew or should have known of the unfitness of Kilgore by reason of his criminal record and general disposition, the complaint was fatally defective in that it failed to disclose that the assault by Kilgore was in the course of his employment. The trial court was of the view, however, that these paragraphs were enough upon demurrer to state a cause of action against defendant. Defendant appeals.
Upon this appeal there is no substantial difference of opinion as to the rule of law to be applied. The rule that the principal is not liable for acts of a servant outside the scope of his employment is too elementary and well established to warrant exposition at any length here. Ratcliffe v. Chicago, M. St. P. R. Co. 153 Wis. 281, 141 N.W. 229; Mandel v. Byram, 191 Wis. 446, 211 N.W. 145. It is also the rule that a wanton and malicious act done by a servant with an intention to further or as an incident to his master's employment is within the course of his employment. See Bergman v. Hendrickson, 106 Wis. 434, 82 N.W. 304; Mandel v. Byram, supra. The wanton and malicious quality of the act is ordinarily strong evidence against such an intention however. Restatement, 1 Agency, p. 550, § 245. The mere fact that the servant commits a tort during the period of his employment is not enough to put the act within the scope of his employment. Mittleman v. Nash Sales, Inc., 202 Wis. 577, 232 N.W. 527; Seidl v. Knop, 174 Wis. 397, 182 N.W. 980. The test is whether the servant has stepped aside from the business of his principal to accomplish an independent purpose of his own, or whether he was actuated by an intent to carry out his employment and to serve his master.
Applying these rules, we conclude that the trial court was in error in overruling the demurrer. Kilgore's acts were not directed against the passenger who declined transportation but against plaintiff who was nothing more than a bystander and who merely happened to be in the vicinity when Kilgore lost his temper. There is nothing in the facts alleged from which there can be inferred a purpose on Kilgore's part to further his employment or to act on behalf of his employer. It can only be held a stepping aside from his employment and wholly outside the scope of his employment. Had Kilgore's act constituted merely an over-zealous attempt to get patronage it may be that his misplaced zeal could be accounted for (if, indeed, this would be necessary upon such a hypothesis) by defendant's encouragement of active competition and its payment of such a low wage scale as would compel such competition. Here, however, the act was so wholly unconnected with the discharge of his duties that no intent to further his employment can be inferred and the employment contributed only to his presence at the place of the assault. Concededly this is not enough. This was simply a tort committed during the time of his employment.
The negligence question appears at first glance to be closer but it must receive the same answer. In substance the allegation is that defendant intrusted its taxicab to one whom it knew or in the exercise of ordinary care should have known was an ex-criminal and of such character and disposition as reasonably to lead to the expectation that he would commit an assault or breach of the peace. Liberally construing the complaint it amounts to this: That in a highly competitive business in which personal solicitation is involved defendant negligently selected as one of its solicitors a person of violent temper who could reasonably be expected to initiate some kind of an affray when the fortunes of competition ran against him, and that defendant's negligence should therefore be considered to have caused plaintiff's injuries. The weak point in this contention is that under the facts alleged in the complaint Kilgore's employment had no connection with the assault. As a result of it he was at the place of the assault and that is all that can be made of it. This falls far short, in our opinion, of enough to show that the employment was the proximate cause of plaintiff's injury. Had plaintiff been a passenger and under the care of defendant, a different question would be presented. See Craker v. Chicago R. Co. 36 Wis. 657; Bergman v. Hendrickson, supra.
This case is one that makes a strong appeal to our sympathies and in view of that we have given earnest and sympathetic consideration to plaintiff's contention. We are unable to find in it the basis for any liability on the part of defendant.
By the Court. — Order reversed, and cause remanded with directions to sustain defendant's demurrer, and for further proceedings according to law.