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Brill v. Davajon - 51 Ill. App. 2d 445, 201 N.E.2d 253 (1964)


Generally, a party injured by the negligence of another must seek his remedy against the person who caused his injury. The doctrine of respondeat superior is an exception to this general rule. Under this exception the negligence of an employee is imputable to his employer if the relationship of principal and agent existed at the time of and in respect to the particular transaction out of which the injury arose. Thus it matters little that the negligent employee was usually the agent of his employer if, at the time he injured the third party, the relationship of principal and agent was temporarily suspended. If he was not acting as his employer's agent at the time of the injury, the employer cannot be held liable for his tort. The burden of proving that an employee was acting as the agent of his employer is upon the party who asserts the agency.


Plaintiff David Brill was driving his automobile in Chicago on a cold icy night. As Brill approached the intersection, he noticed a Checker cab trying to push another car, which apparently had stalled. At some point, the automobiles collided while McFarland, the taxi driver, was pushing the other car. It was undisputed that the driver of the stalled car had offered McFarland, the driver of the Checker taxi, one dollar to do this favor for him.

Plaintiff Brill brought a personal injury action against defendants, the driver of the other vehicle and the Checker Taxi Company, the owner of the taxi who had employed McFarland, the taxi driver. The jury found for Brill. The trial court denied Checker's motion for a directed verdict when it alleged that at the time of the accident, McFarland was not acting as its agent. Checker alleged that McFarland was acting on his own interest at the time and that he was acting against the Checker's instructions. Checker appealed.


Was the defendant taxi company liable for the negligence of one of its drivers?




The court found that Brill had failed to prove the material element of agency. The court also found that it was reasonable to believe that McFarland, the taxi driver, had  departed from Checker's taxi-for-hire business when he helped the stalled car. This was a temporary lapse in the agency relationship. The court reversed the rulings of the lower courts.

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