Beck v. Fond Du Lac Highway Comm.

• Decision Date: 06 June 1939
• Citation: 286 N.W. 64,231 Wis. 593
• Parties: BECK v. FOND DU LAC HIGHWAY COMMITTEE et al. SADOFF et al. v. SAME.
• Court: Wisconsin Supreme Court

231 Wis. 593

286 N.W. 64

BECK

v.FOND DU LAC HIGHWAY COMMITTEE et al.

SADOFF et al.

v.SAME.

Supreme Court of Wisconsin.

June 6, 1939.

Appeal from a judgment of the Circuit Court for Fond du Lac County; C. F. Van Pelt, Judge.

Affirmed.

Separate actions by Frank W. Beck, plaintiff, against Fond du Lac Highway Committee, consisting of H. S. Northrup, John J. Weber, Anthony Pickert, James McCarthy, and Miles Rieman, Charles Allen and Claude Morgan and the Milwaukee Automobile Insurance Company, Ltd., Mutual of Milwaukee, Wisconsin, defendants, and by A. Sadoff, David Sadoff and Irving Fishelson, co-partners doing business under the firm name and style of Badger Liquor Company, plaintiff, against the same defendants. The actions were commenced on February 11th, 1938, to recover against defendants for damages resulting from a collision between a car owned by Sadoff, driven by Beck, and a county highway truck. The cases were consolidated for trial and were tried to the court and a jury. The jury returned a special verdict. The jury found that at the time of the collision no part of the county motor truck was parked on the roadway and that the defendant Allen, who was in charge of the county truck, was not negligent (1) with respect to placing fusees or red flare lights to the front and rear of the parked truck; (2) in installing and using an auxiliary spot light; (3) with respect to using or parking the truck or occupying therewith a space upon or immediately adjacent to the travelled portion of the highway without displaying on the rear thereof at least one lamp plainly visible from the rear so as to show a red light plainly visible under usual atmospheric conditions a distance of five hundred feet to the rear of the truck; (4) failing to display two red signal lanterns or lights so as to give adequate warning of the presence of the truck. Plaintiff Beck was found negligent with respect to lookout, management and control, failing to stop his automobile before the collision, and was exonerated with respect to speed and driving his automobile while intoxicated. All of the items of negligence found as to Beck were found to have been causes of the collision. Damages were duly assessed and are not in question upon this appeal. On October 5th, 1938, judgment was entered upon the verdict. Plaintiffs appeal.Kelley & Boerner, of Fond du Lac, for appellants.

Reilly & Cosgrove, of Fond du Lac, for respondents.

WICKHEM, Justice.

Since one of the principal contentions in this case is that the trial court as a matter of law should have held defendants guilty of negligence, it is necessary to briefly detail the facts. On December 31st, 1937, plaintiff Beck was in the employ of plaintiff Badger Liquor Company, of which plaintiff Sadoff was the proprietor. His employment consisted of delivering beer. On that date, while driving north on Highway 41, he collided with a truck belonging to Fond du Lac county and operated by defendants Allen and Morgan under the alleged control and supervision of the individual members of the Fond du Lac highway committee. The accident happened at about 7:30 in the evening, and it was quite dark. According to the evidence the county truck was facing north and was parked completely upon the gravel shoulder. It was equipped with the usual tail lights and warnings. There were, however, no flare lights or fusees set behind the truck. The cab of the truck was equipped with a rear spot light which was pointed towards the east ditch and the truck itself was on the east shoulder of the highway, that is to say, on the same side of the road as plaintiff was travelling. Another car proceeding south passed the truck when plaintiff was one thousand feet or so away from it. Plaintiff claims to have supposed that there were two cars approaching him abreast, one of them operating on the wrong side of the road with only one light. He slowed down and pulled off to the right, and when the car which was actually moving south passed him, he claims that he was confused by the lights of this car as well as the spot light of the truck, and that when the car had passed him he made a quick turn to the left but was then too close to be able to clear it.

After the verdict an ex parte application was made to the trial court to extend the time for hearing and determining motions for a new trial. The trial court entered an order extending the time. The petition of plaintiff's counsel states that to enable him fully to present motions after verdict petitioner secured a transcript of the testimony in said actions; and that since obtaining same he finds he needs further time to file and present motions after verdict. In ordering the extension the trial court merely states: “Upon the foregoing petition and upon the records and files in the above entitled matter it is ordered. ***”

[1][2] Thereafter, in its decision the trial court concluded that since the order contained no statement of good cause and since there had been no showing of good cause in the petition, the court was withoutjurisdiction to make it and the order was void. Plaintiffs object strongly to this conclusion, but the objection is unfounded. The cases of Lingelbach v. Carriveau, 211 Wis. 653, 248 N.W. 117, 922;Borowicz v. Hamann, 189 Wis. 212 207 N.W. 426, and Beck v. Wallmow, 226 Wis. 652, 277 N.W. 705, are all to the effect that good cause must be shown and that the order must recite facts which constitute good cause. It is our conclusion that good cause was not shown by the petition. All the petition amounts to is a statement that petitioner needs more time. This is a conclusion which omits the premises upon which it is based. The order itself contains no recitation even of the conclusion that good cause has been shown. Hence, we conclude that plaintiffs' position is not well taken in this respect.

[3] The next contention is that the negligence of defendants was established as a matter of law and that all of the questions with respect to defendants' negligence should have been answered by the court. Before commencing a discussion of this, we advert to a matter that is not referred to in any way in the briefs. The defendants in this action are the Fond du Lac county highway committee, each of whom under his name and in his individual capacity is made a defendant. We discover no basis in law or fact for this attempt to hold liable the county highway committee, corporately or individually. Only the county or the persons actually operating the vehicle could sustain any liability in such a case as is here involved. The liability of the county in such a situation is disposed of by the case of Crowley v. Clark County, 219 Wis. 76, 261 N.W. 221, and the matter is so fully discussed by the opinion in this case as to warrant no further exposition here. In view of our conclusion upon the merits, the character and extent of the liability of the actual operators of the vehicle is immaterial and calls for no discussion. This last comment also applies to the liability of the highway committee and its individual members, but in this instance we think that it will be of use to the bar to point out that neither the committee as such nor its individual members sustain a tort liability merely by reason of the fact that a truck belonging to the county has been negligently operated by the employees in charge of it. The county committee and its members are merely representatives of the county.

In Marinette County Highway Committee v. Industrial Commission, 227 Wis. 560, 278 N.W. 863, an injured workman sought compensation against a county highway committee. The issue...