explaining that a party must “establish that particular species of agency known as master and servant” to impose vicarious liability
How later courts described this case
- explaining that a party must “establish that particular species of agency known as master and servant” to impose vicarious liability
Written by the judges who cited it.
The opinion
HaRvey, J.
(concurring in part): I agree that in consideration of defendants’ demurrer to plaintiff’s evidence the court should consider the evidence offered by plaintiff as favorably to- him as that reasonably can be done. ■ I agree that the evidence offered by plaintiff in this case was sufficient to go to the jury as against the defendants, John Lane and Zirkle. Plaintiff had alleged that John Lane was the agent, servant and employee of Arthur Capper. The burden was upon plaintiff to prove that Lane was such a servant, or such an employee of* Capper as to make Capper liable for the negligence of Lane in delivering the Sunday Capital. The evidence was far short of that. The most the evidence established along this line was that under some arrangement with Capper, or with some other undisclosed person, Lane was delivering a newspaper published by Capper and collecting subscriptions thereon. Clearly, this is not enough to show that Capper was liable for injuries resulting from Lane’s negligence while delivering such papers.
I see no reason in this case for discussing the doctrine of independent contractor. It is true, the answers of some of the defendants alleged that Lane was an independent contractor, but no evidence was offered in support of those allegations. They did not enter into the decision of the trial court when ruling upon the demurrers to plaintiff’s evidence.
Wedell and Hooh, JJ., concur fully in the views expressed by Mr. Justice Harvey.