Brochu v. Taylor

• Decision Date: 10 November 1936
• Citation: 223 Wis. 90,269 N.W. 711
• Parties: BROCHU et al. v. TAYLOR, and five other cases.
• Court: Wisconsin Supreme Court

223 Wis. 90

269 N.W. 711

BROCHU et al.

v.TAYLOR, and five other cases.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Appeals from judgments of the Superior Court of Douglas County; Archibald McKay, Judge.

Actions by Lawrence A. Brochu, an infant, by guardian, and others, by Alice J. Prigge, by Alyce McIntyre, an infant, by guardian, and others, and by Alfred Weyandt against Erma Taylor and the Preferred Accident Insurance Company of New York, and actions by Lucile Lyons and by Raymond Follis against Erma Taylor, Arthur H. Rand, and the Preferred Accident Insurance Company of New York. From adverse judgments, the Preferred Accident Insurance Company of New York appeals.-[By Editorial Staff.]

Judgments reversed as to the appellant, with directions.

In these actions, commenced on or about August 24, 1935, the respective plaintiffs seek to recover damages sustained by them as a result of a collision of the automobile in which they were riding with one owned by the defendant Arthur H. Rand, but driven by the defendant Erma Taylor. Rand was joined as a defendant in only the actions brought by the plaintiffs Follis and Lyons. In those actions the other defendants were Erma Taylor, Lester LaTourneau, and the Preferred Accident Insurance Company of New York, hereafter called the Insurance Company. In the actions in which Prigge, Weyandt, McIntyre, and Brochu were plaintiffs, the only defendants were Erma Taylor and the Insurance Company. The six actions were consolidated for purposes of trial. Trial was had to the court and a jury. Upon the closing of the testimony, the defendant Rand moved the court to direct a verdict in his favor on the ground that it conclusively appeared from the evidence that at the time of the accident neither Erma Taylor nor Lester LaTourneau was acting within the scope of his employment or in the furtherance of his employer's business, and that therefore Rand was not liable under the doctrine of respondeat superior. That motion was granted. The Insurance Company likewise moved to direct the verdicts in its favor on the ground that it conclusively appeared from the evidence that neither of the defendants, Erma Taylor nor Lester LaTorneau, was using the Rand automobile with the permission of Rand or with the permission of any adult member of his household. The jury found, so far as is here material, (1) that at the time of the collision the defendant Erma Taylor was not driving the Rand automobile with the permission of Rand or with the permission of an adult member of his family; (2) that at the time of the collision the defendant Lester LaTourneau was using the Rand automobile with the permission of Rand or the permission of an adult member of his family. The court answered the following question “Yes”:

“Question number 12. At the time of the collision and accident herein, was the defendant, Erma Taylor, driving said automobile as the agent of the defendant Lester LaTourneau?”

Upon the coming in of the verdict, the Insurance Company made the usual motions, among which were motions to change the answer of the jury which found that LaTourneau was using the automobile at the time of the collision with the permission of Rand or the permission of an adult member of his family, from “Yes” to “No,” to change the answer to question No. 12 from “Yes” to “No,” and in the alternative for a new trial. All of the motions of the Insurance Company were denied. From the six judgments, entered May 7, 1936, in favor of the respective plaintiffs, for the amounts of damages found by the jury against LaTourneau and Taylor and the Insurance Company in two of the actions and against Taylor and the Insurance Company in four of the actions, the Insurance Company appealed. The relevant facts will be stated in the opinion.Hanitch, Johnson, Fritschler & Barstow, of Superior, and Ernest E. Watson, of Minneapolis, Minn., for appellant Insurance Co.

Hughes & Anderson, of Superior, for respondent Follis.

Curran & Leveroos, of Superior, for other respondents.

NELSON, Justice.

The Insurance Company contends that the court erred in denying its motions, (1) to direct the verdicts in its favor, and (2) to change the answer of the jury to question 11 from “Yes” to “No,” and for judgment in its favor upon the verdict as so changed.

The sole question requiring determination is whether the evidence adduced upon the trial supports the finding of the jury that at the time of the collision Lester LaTourneau was using the Rand automobile with the permission of Mr. Rand or with the permission of an adult member of his family. The question to be determined requires a recitation of the material facts.

Some time between 1 and 2 o'clock in the morning of Sunday, August 4, 1935, a comparatively new, seven-passenger Buick sedan belonging to Mr. Rand collided with the rear of a car occupied by the several plaintiffs, at a point about 3 1/2 miles east of the village of Brule. Both cars were proceeding in an easterly direction. At the time of the accident the Rand automobile was being driven by the defendant Erma Taylor, who was employed as a maid in the Rand summer home. Lester LaTourneau, who was employed by Mr. Rand as a chauffeur and general handyman, and one Woerle, a tavern keeper, were riding in the rear seat. Mr. Rand was a resident of Minneapolis, Minn. He owned a summer home in this state situated 5 or 6 miles south of the village of Brule. His cabin was situated on the bank of the Brule river and about a hundred feet therefrom. Back of the cabin there was a driveway. His garage was located about 250 feet back of the cabin. Back of the garage and about 60 feet therefrom there were cabins occupied by certain servants employed by Mr. Rand. LaTourneau and Erma Taylor occupied quarters in those cabins. At the time of the accident, Mr. Rand owned and maintained at his summer home three automobiles, a seven-passenger, maroon colored, Buick sedan, a Buick town car, and a Ford station wagon. It was LaTourneau's duty as chauffeur to care for these cars, to see that they were kept in a state of repair, properly lubricated, and supplied with gasoline. The town car was known as Mrs. Rand's car. The station wagon was used for general household purposes, and the sedan was Mr. Rand's personal car. The Buick sedan was insured against public liability and property damage by the Insurance Company under a policy issued to Mr. Rand in the state of Minnesota. So much of that certain provision of the policy as is relevant to this controversy is as follows:

“To Pay all sums which the Assured shall become liable to pay as damages (either direct or in consequence of expenses and/or loss of services) imposed upon him by law for bodily injury, including death at any time resulting therefrom (herein called ‘Bodily Injury’), sustained by any person or persons if caused accidentally by the ownership, maintenance or use of any automobile disclosed in the Declaration for the purposes therein stated. ***

“(1) The unqualified word ‘Assured’ includes not only the Named Assured but any other person using and having a legal right to use any such automobile, including also any other person or organization legally responsible for the use thereof, provided the disclosed and actual use of such automobile is ‘Pleasure and Business', or ‘Commercial,’ each as defined herein, and further provided that such use is with the permission of the Named Assured, who, if an individual, may give such permission through an adult member of his household other than a chauffeur or domestic servant.”

[1] On Saturday evening, August 3, 1935, the Rands entertained a member of guests at dinner. The last of such guests left at about twenty minutes past eleven. At that time LaTourneau was still on duty. He banked the fire and assisted in closing up the cabin for the night. Upon completing his duties LaTourneau said good night and proceeded to his cabin where...