Levin v. City of Omaha ( 1918 )

Morrissey, C. J.

Plaintiff recovered a judgment for the death of Isadore Levin caused by the negligence of one Boy Furstenberg in driving an automobile at a reckless rate of speed upon the streets of defendant city. That Furstenberg was negligent is admitted, hut defendant denies responsibility for his acts.

At the time of inflicting the injury, Furstenberg was driving an automobile owned by a private party, which had been taken to the city garage by its owner in the expectation of making a sale thereof to the city. Furstenberg appears co have been a friend of the owner of the car and to have hung around the garage for several days. On the' day of the accident, and for some time before, one Baughman was foreman of the garage, and Mr. Kugel was a member of the city commission and in charge of the street department. Baughman was carried on the city pay roll as a police officer. The garage' of which he was foreman made repairs on the police department’s automobiles, and also upon the automobiles in use- by the street department of which Mr. Kugel was the head. One Davis, the chauffeur for the street commissioner, drove the commissioner’s car to this garage for the purpose of changing an inner tube. The tube he desired to use was at another garage. Furstenberg asked Baughman if he should go after the tube for Davis. Baughman, according to one witness, said, “Yes; go and hurry back.” According to another he said, “Yes; go ahead.” The record does not disclose whether Baughman directed Furstenberg to take this automobile or not, but Baughman testified: “It is implied around that place if you go out any place you are going to take a car if you can get it.” Furstenberg took the car, went after the repair needed for the street commissioner’s car, and while on this errand negligently killed plaintiff’s intestate.

On behalf of the city it is urged that Furstenberg was not an officer, agent or employee of the city; that Baughman was a police officer; that the garage of which he was foreman was under the police department and maintained principally for looking after cars in use in the police department; that no direction given by Baughman would bind the city; that he was without authority to hire or discharge persons in behalf of the city, and that there was laid upon him no duty to make repairs on any car not engaged in the. police department; that the city would not be liable for the negligence of its police officers, and no liability could attach under any authorization that Baughman might give to Furstenberg.

The evidence discloses that the car of the street department had regularly been repaired at this garage; that, although Baughman was carried on the city’s payroll as a policeman, the service he rendered was that of a shop foreman. That he had the right, and that perhaps it was his duty to make the repairs on the street commissioner’s car, had long been recognized by the custom of making such repairs. If it were his duty to make the repairs, he surely had the authority to send after the necessary articles, and, if he could direct his helpers to jack up the car and change the tires, he could, no doubt, direct a helper to go to another building and bring the inner tube. In making such repairs and in giving such orders Baughman was acting in behalf of the corporate interests of the city, and not as a police officer. The fact that he was enrolled as a policeman and might have been clothed in a policeman’s uniform and given a beat upon the street does not change the character of his employment, when he was in fact doing the work of a shop foreman. The character of the employment will govern, and he must be held to have the power incident to the duties which the city imposed upon him. His work was inconsistent with the duties of a peace officer, but entirely consistent with the duties of an employee engaged by the city in its corporate capacity.

The car which Furstenberg drove, it is true, was not owned by the city, and had been taken to this garage by its owner to be sold to the police department; but it had been stored in this garage as city cars were stored, the oil and. gasoline for its use had been furnislied by the city, and to some extent it had been used in the city service. It was under the control of the city, was being driven by one authorized by the foreman of the city’s garage to drive it, and was on a mission for the street department.

The defendant is not liable for the negligence of its police officers while engaged in the police department, but Baughman had lost the character of a peace officer, and had become the servant of the municipality in its corporate capacity. As foreman of the shops he gave directions to those engaged in the handling of cars and directed the making of repairs. The character of this work was such, under the circumstances, that the employment of assistants on. the master’s account must necessarily have been contemplated. The authority to send PurStenberg on this errand, if not directly given, was implied, and the negligence of the messenger must be regarded as the negligence of the city. See article by Mechem on “The Liability of a Master to Third Persons for the Negligence of a Stranger Assisting his Servant,” in 3 Michigan Law Review, 198; also, 18 R. C. L. 785, sec. 245; and note to Thyssen v. Davenport Ice & Cold Storage Co., 13 L. R. A. n. s. 572 (134 Ia. 749).

The instructions complained of are in line with this view of the law, and the judgment is

Affirmed.