#### Hiroux, Respondent, vs. Baum, imp., Appellant.

*November IS*—

December *1, 1908.*

*Automobiles: Master and servant: Negligence of servant: Injuries to third parties: Evidence: Independent contractor: Misleading instructions: Appeal and error: Review: Harmless error: Excessive damages.*

1. In an action for injuries by collision with an automobile owned by defendant but operated by defendant’s son, the evidence, stated in the opinion, is *held*sufficient to support a finding that the son was acting as the father’s servant.

■ 2. In such case the fact that the son was running the automobile by authority of the father is sufficient to make a *prima facie*case of master and servant.

3. In an action for injuries by collision with an automobile owned by defendant it appeared that defendant’s son was actually operating the machine, but under the instructions of a third person from whom the machine was purchased under an agreement to give the son such instructions. *Held,*that while the question as to whether or not the third person had possession *198of the automobile as an independent contractor was close, the jury were warranted upon the evidence and the legitimate inferences to be drawn therefrom in finding that the son was the agent and servant of the defendant in the operation of the automobile.

4. In an action for personal injuries the court' instructed the jury that they must determine whether defendant was exercising such care as a man of ordinary prudence would exercise under similar circumstances, “and if you find he was *not,*then you will find that he was in the exercise of ordinary care.” *Held,*talcing the instruction in its literal sense, that it was more favorable to defendant than if the word “not” had been omitted,, and was not prejudicial.

5. In .<,n action for personal injuries by collision with an automobile, upon the evidence, stated in the opinion, it is *held*that a. verdict for $1,200 damages was not excessive.

Aeeeae from a judgment of tbe circuit court for Brown county: S. D. HastiNGS, Circuit Judge.

*Affirmed.*

Tbe plaintiff was at work sweeping one of tbe streets in tbe city of Green Bay, Wisconsin, and was run into and injured by an automobile owned by appellant, *John Baum.*The appellant purchased tbe automobile a few days before the' time of tbe accident, and bad an understanding with Mr. Lucia, one of the members of the firm from whom the-machine was purchased, that he would instruct the appellant’s son, Cecil Baum, to run it. At the time, of the injury Mr. Lucia and Cecil Baum were out with the machine and Cecil was running it. Defendant Cecil was seventeen years of age, living with his father, who was a merchant doing business in Green Bay, and occasionally worked in his father’s store. The complaint charges defendants with negligence, and that the defendant Cecil was acting as the agent, and servant of the defendant *John*Baum, and that said Cecil, while in the employ and acting as the agent and servant of *John Baum,*and with his sanction' and authority, drove an automobile belonging to the defendant *John Baum*carelessly and negligently and ran into plaintiff, causing the injury. The defendant *John Baum*answered by general *199denial, and the defendant Cecil answered by his guardian *ad litem,*admitting that plaintiff was employed as a street sweeper by the city of Green Bay and was at the time of the accident sweeping Main street and was thrown upon the ground in the street, and that defendant Cecil is the son of defendant *John Baum,*and denied the other allegations of the complaint. The jury returned the following verdict:

“(1) Was Cecil Baum, the servant and agent of the defendant *John Baum*in running the automobile at the time the plaintiff was injured? *A.*Yes.

“(2) If you answer the first question ‘yes,’ then answer' this: Was Cecil Baum acting within the scope of -his employment while driving the automobile at the time of the injury ? *A.*Yes.

“(3) Was Cecil Baum wanting in ordinary care in driving and managing the automobile prior to and at the time it struck the plaintiff? *A.*Yes.

“(4) If you answer the third question ‘yes,’ then answer this: Was such want of ordinary care the proximate cause, of the plaintiff’s injury ? A. Yes.

“(5) If your answer to the third question should be ‘yes,’ then answer this: Did any want of ordinary care on the part of the plaintiff contribute to his injury? *A.*No.

“(6) What amount of money would compensate the plaintiff for his injury? *A.*Twelve hundred ($1,200) dollars.”

The usual motions were made to amend the verdict, for judgment in favor of the defendant *John Baum*upon the verdict as amended, for judgment notwithstanding the verdict, and for a new trial, which motions were denied and due exceptions taken. Exceptions were also duly filed to the charge of the court to the jury. Judgment was entered in favor of the plaintiff upon the verdict, from which this-appeal was taken.

Eor the appellant there was a brief by *Aarons &*Niven> and oral argument by *J. M. Niven.*

Eor the respondent there was a brief by *Kittell &*Bwrhe, and oral argument by J. *A. Kittell.*

*200KebwiN, J.

Tbe plaintiffs theory of the case upon the trial below was that Cecil Baum was the agent or servant • of appellant and therefore the appellant was liable for Cecil’s torts. The jury found for plaintiff upon that issue, and the question arises whether such finding has support in the ¡evidence. It is insisted by appellant that it has not. There is evidence tending to prove that Cecil was seventeen years of age, lived with his father, occasionally worked in his father’s store, but received no compensation for his services; that appellant bought the automobile from Lucia Bros, mainly upon the solicitation of his son Cecil about a week before the injury; that it was understood between appellant and Cecil that the latter should learn to run the automobile or car so purchased and teach the other members of the family to run it, or run it for their benefit; that by agreement between appellant and Lucia the latter was to teach Cecil to run the car, and it was understood, by arrangement between appellant and Cecil, that Cecil was to have the right to take the car whenever he had time and, with the aid of Lucia, learn to run it. On the day in question Cecil took the car, and at his request Lucia went with him to teach him to run it, and after going a considerable distance Lucia turned the •car over to Cecil to run, and Cecil was running it at the time •of the injury;.that from the time of the purchase the car was •owned and controlled by appellant, and at the time of the in- . jury was in the possession of Cecil, with the consent of appellant, for the purpose of learning to operate it under instructions from Lucia. The jury would be entitled to find the foregoing facts from the evidence. If Cecil was running the car .by authority from appellant, that would be sufficient to make a *prima facie*case of master and servant. *Gerhardt v. Swaty,*57 Wis. 24, 14 N. W. 851; *Schaefer v. Osterbrink,*67 Wis. 495, 502, 30 N. W. 922; *Davis v.*Dregne, 120 Wis. 63, 97 N. W. 512; *Stewart v.*Baruch, 103 App. Div. 577, 93 N. Y. Supp. 161. The foregoing cases are quite anal*201ogous in principle to tbe one before us, and we think support the ruling of the lower court that the' evidence was sufficient to warrant the findings of the jury. On the question of the .agency of Cecil we are cited by counsel for appellant to *Kumba v. Gilham,*103 Wis. 312, 79 N. W. 325; *Winkler v. Fisher,*95 Wis. 355, 70 N. W. 477; and *Maddox v. Brown,*71 Me. 432. In *Kumba v. Gilham, supra,*the son was clearly acting beyond the authority or direction of the father and •contrary to his desire. In *Winkler v. Fisher, supra,*the son •disobeyed the express instructions of the father, and was not at the time of the injury in his father’s employ in any sense whatever, but was acting contrary to his instructions. In *Maddox v. Brown, supra,*the son took his father’s horse on -business exclusively of his own and without the knowledge •of the-father. The boy was in no way executing the orders of his father.

It is further insisted that Cecil, was not the servant of •appellant but the servant of Lucia, an independent contractor, and *Carlson v. Stocking,*91 Wis. 432, 65 N. W. 58; *Kuehn v. Milwaukee,*92 Wis. 263, 65 N. W. 1030; *Bauer v. Richter,*103 Wis. 412, 79 N. W. 404; *Smith v. Milwaukee B. & T. Exch.*91 Wis. 360, 64 N. W. 1041; *Salliotte v. King B. Co.*122 Fed. 378, 65 L. R. A. 620; *Bailey v. Troy & B. R. Co.*57 Vt. 252; and *King v. N. Y. C. & H. R. R. Co.*66 N. Y. 181, are cited. We have carefully examined these cases and cannot discover that they are controlling upon the question in appellant’s favor. In *Carlson v. Stocking, ^upra,*there was evidence that one Erazer had full control of vthe dam and drive of logs in question, that he employed all' the men and furnished the supplies, and that the defendants were merely to pay him a compensation for.driving their logs, the defendants participating in raising the dam and operating the same in making the drive at the time in question, and it was held that whether Erazer was an independent ■contractor was a question for the jury.. In *Smith v. Milwau**202*kee B.*& *T. Exch.,*contractors bad agreed to erect a building according to fixed plans and specifications, and it was-field they were independent contractors, although the owner-reserved the right of inspection. In *Kuchn v. Milwaukee,, supra,*one who fiad a contract with the city to remove garbage, with, no right on the part of the city to control the mode- or manner of performance of the contract, was field to be an independent contractor, although the city had the right to re-let the contract in case of “improper or imperfect” performance. Other authorities cited by appellant under .this-head are similar in principle to the foregoing.

The case before us turns upon whether or not Cecil was at the time of the injury in possession of and operating the car as servant of appellant, or whether Lucia had possession of it as an independent contractor. While we regard the-question close, we have arrived at the conclusion that the jury was warranted upon the evidence and the legitimate inference to be drawn therefrom in finding that Cecil was the' agent and servant of appellant in the operation of the car,., and therefore cannot disturb the verdict upon that point.

2. Error is assigned upon the following portion of. the-charge:

> “Now, if you are satisfied from all the circumstances of' this case — you must take into consideration just what the-young man was doing, what experience he had had, and what he knew about operating the machine, and what was on the-street, everything that he saw or knew, and everything that he-should, in the exercise of ordinary care, have seen or known,, and determine just what he did, and just what happened, and determine whether he was exercising at the time such-care as men of ordinary care and prudence would exercise-under the same and similar circumstances, and if you find he was not, then you will find that he was in the exercise of’ ordinary care, in answer to this question.”

It is very obvious that the use of the word “not,” which made the portion excepted to read, “and if you find he was-*203not iii tbe exercise of ordinary care/.’ was clearly a slip in the use of the word “not” which the learned trial judge did not intend, and must have been so understood by the jury. This we think would be apparent to any juror of average intelligence from the connection in which the word “not” was used, as well as viewing the portion of the charge excepted to together with the balance of the charge. Besides, it will be seen that, taking this portion of the charge in its literal sense, it was more favorable to the appellant than if the word “not” had been omitted. A case in point is *Binns v. State,*66 Ind. 428. Without further pursuing the subject, we are of opinion that there was no prejudicial error in the charge. *Hoffman v. Rib Lake L. Co.*136 Wis. 388, 117 N. W. 789; *Lipsky v. C. Reiss C. Co.*136 Wis. 307, 117 N. W. 805 ; *Kiekhoefer v. Hidershide,*113 Wis. 280, 288; *Pelton v. Spider Lake S. & L. Co.*132 Wis. 219, 112 N. W. 29; *Twentieth Century Co. v. Quilling,*136 Wis. 481, 117 N. W. 1007; *Butler v. State,*102 Wis. 364, 78 N. W. 590.

3. It is also' contended that the damages, $1,200, awarded are excessive. We would be better satisfied, upou the facts of the case as disclosed by the evidence, with a smaller verdict. The court below refused to disturb the verdict, and the question arises whether we can reverse it because a new trial was not granted on account of excessive damages. It is true the actual expenses incurred by the plaintiff in consequence of the injury were small, the appellant paying the doctor’s bill. The plaintiff is about sixty-three years of age and the injuries did not at first appear to be of. a serious character. The principal injuries complained of were to the head and hip. The evidence of the doctors who examined him is quite strong to the effect that they were unable to find any physical injury to the hip and were obliged to rely upon plaintiff’s statements, conduct, and behavior, nothing being observable of any consequences except a scalp wound, which healed in a short time. There is evidence, however/ *204tending to show that the machine was going eight or nine miles an honr; that plaintiff when struck was knocked down and rendered unconscious; that he had not at the time of trial recovered from the injuries, was unable to work, and suffered considerable pain; did not rest well for three weeks ■after the injury; was earning $1.50 per day when injured in July, and the case was tried in December, 1907. One -doctor who made an examination two months before the trial found tenderness in the scalp wound, also soreness in hip which he thought would bo permanent, and that the injuries complained of could have been received without leaving any external evidence of them; that the conditions he found came from the injuries received by plaintiff when struck by the ■car; that the result of an operation for relief of the scalp injury would be uncertain, and that plaintiff’s head was permanently injured, and soreness continued in the hip and back. From a careful examination of the evidence We do not feel that this court would be justified in holding that the damages •awarded by the jury are excessive. *Duffy v. C. & N.*W. *R. Co.*34 Wis. 188; *Donovan v. C. & N.*W. *R. Co.*93 Wis. 373, 67 N. W. 721, and cases cited. It follows that the judgment must be affirmed.

*By the Court.*— The judgment of the court below, is affirmed.