Feinsinger v. Bard, 10453

• Decision Date: 16 April 1952
• Docket Number: 10454,No. 10453,No. 10455.,10453,10455.
• Citation: 195 F.2d 45
• Parties: FEINSINGER v. BARD. FEINSINGER v. CENTURY INDEMNITY CO. FEINSINGER v. IRVING W. RICE & CO., Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

195 F.2d 45 (1952)

FEINSINGER v. BARD.

FEINSINGER v. CENTURY INDEMNITY CO.

FEINSINGER v. IRVING W. RICE & CO., Inc.

Nos. 10453, 10454, No. 10455.

United States Court of Appeals Seventh Circuit.

February 25, 1952.

Rehearing Denied April 16, 1952.

E. L. Everson, John C. Whitney, Green Bay, Wis., Frank M. Coyne, R. J. Sutherland and Ralph E. Axley, all of Madison, Wis., Everson, Ryan, Whitney & O'Melia, Green Bay, Wis., for Frances Bard.

Clifford G. Mathys, Willard S. Stafford, John Ernest Roe, Rieser, Mathys, McNamara & Stafford, and Roberts, Roe, Boardman, Suhr & Bjork, all of Madison, Wis., for plaintiff-appellee.

Before MAJOR, Chief Judge, and KERNER and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

The three defendants mentioned in the caption appeal separately from a judgment favorable to the plaintiff in the amount of $45,000, entered February 20, 1951. The action was instituted to recover for personal injuries sustained by the plaintiff resulting from a collision between two automobiles which occurred on the 21st day of February, 1950, on United States Highway 41, in Brown County, Wisconsin. One of the cars, driven by Stanley Bard, was traveling south, and the other, driven by Carl Wedell, was traveling north. Both Bard and Wedell were instantly killed. Plaintiff was a guest passenger in the car driven by Wedell.

The appellant Frances Bard, mother of the decedent Stanley Bard, was duly appointed administratrix of his estate by the Surrogate's Court of the County of Westchester, State of New York, and qualified as such. The appellant Irving W. Rice & Co., Inc. (hereinafter referred to as Rice) was alleged and found to have been the employer of Stanley Bard, deceased, and liable as such. The appellant Century Indemnity Company (hereinafter referred to as Century) carried liability insurance on the car driven by Wedell, with coverage limited to $15,000. Its liability is dependent upon the negligence alleged and found as to the operation of the car by its insured.

Each of the defendants present a contested issue peculiar to its own situation. Other issues, perhaps of less importance, are urged by all defendants.

Bard presents the legal issue as to whether a Wisconsin statute, providing for substituted service on the Commissioner of the Motor Vehicle Department of Wisconsin in an action against a personal representative of a deceased New York motorist, arising out of an accident occurring in Wisconsin, is constitutional. Rice presents the issue as to whether the evidence supports the finding that at the time of the collision in question Stanley Bard was in its employment. Century presents the issue as to whether the evidence sustains a finding that Wedell was negligent in respect to lookout or management and control so as to render liability on its part, and whether the evidence sustains a finding of no assumption of risk on the part of the plaintiff.

Other contested issues in which the defendants find more or less common ground relate to the voir dire examination of the jury by the court, argument by plaintiff's counsel to the jury, instructions given by the court and the amount of damages awarded by the jury.

We shall first consider the question raised by Bard, that the Wisconsin statute which authorizes service against a non-resident administrator is unconstitutional. Service was had on June 7, 1950, by filing a copy of the summons and a copy of plaintiff's complaint with B. L. Marcus, Commissioner of the Motor Vehicle Department of Wisconsin, pursuant to the provisions of Sec. 85.05(3) Wisconsin Statutes, which, so far as here material, provides: "The use and operation by a nonresident of a motor vehicle over the highways of Wisconsin shall be deemed an irrevocable appointment binding upon his executor, administrator or personal representative by such nonresident of the commissioner of the motor vehicle department to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him, or his executor, administrator or personal representative, growing out of such use or operation resulting in damage or loss to person or property, and said use or operation shall be a signification of his agreement that any such process against him, or his executor, administrator or personal representative, which is so served shall be of the same legal force and validity as if served on him personally, or his executor, administrator or personal representative. Service of such process shall be made by serving a copy upon the commissioner of the motor vehicle department or by filing such copy in his office, together with a fee of $2, and such service shall be sufficient service upon the said nonresident, or his executor, administrator or personal representative * * *."

Bard answered plaintiff's complaint on June 27, 1950, without raising any question as to venue or jurisdiction. On March 12, 1951, the day the trial commenced, Bard, pursuant to a notice given ten days prior thereto, raised for the first time what she asserts was lack of jurisdiction because of the unconstitutionality of the aforesaid statutory provision. Plaintiff argues that Bard by her answer to the complaint waived any defect in service of process. Bard contends that it was a jurisdictional question and could be raised at any time. In our view, the court had jurisdiction of the subject matter of the suit and any jurisdictional issue related only to the question as to whether Bard was properly before the court. In other words, Bard raised a question as to venue, and we need not cite authority for the well established rule that a defect in venue may be waived.

However, we need not rest our decision on this somewhat dubious ground, because we think that the court properly sustained the constitutionality of the Act. True, the Wisconsin Supreme Court has not directly passed upon the provision in controversy but in view of State ex rel. Ledin v. Davison, 216 Wis. 216, 256 N.W. 718, 96 A.L.R. 589, there is every reason to believe that it will sustain the provision when the question is presented. In that case, the court held that a statute which authorized service upon a non-resident motor vehicle operator was not applicable to the administrator of such operator's estate, but at the same time set forth specifically and in detail the phraseology of an amendment which would evidence legislative intent to authorize service upon the personal representative of a deceased motorist. Thereafter, the Wisconsin legislature specifically and verbatim adopted the phraseology suggested by the Supreme Court in the form of the provision as it now exists. It hardly seems likely that the Supreme Court would now hold unconstitutional a legislative enactment made in conformity with the precise suggestion which it made.

Three courts of last resort have sustained the constitutionality of a provision either exactly or substantially in the same form. Leighton v. Roper, 300 N.Y. 434, 91 N.E. 2d 876, 18 A.L.R.2d 537; Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287; Plopa v. DuPre, 327 Mich. 660, 42 N.W.2d 777. And it is significant to note that the Arkansas court in sustaining a similar provision relied heavily upon the decision of the Wisconsin court in State ex rel. Ledin v. Davison, supra. As to that case, it stated at page 291 of 171 S.W.2d: "The Wisconsin court thereby clearly recognized that such a statute was within the legislative power. In fact, it would seem possible that the draftsmen of our Act 40 of 1941 had before them the Wisconsin decision in preparing the draft of our Act 40 of 1941. So, we hold that the service upon the executor of the estate of Mrs. Emma Tarnutzer was legal and valid."

Bard relies heavily upon Knoop v. Anderson, D.C., 71 F.Supp. 832, which admittedly is the only case in support of her contention. We agree that the court in that case gave the question careful and extended consideration, but we think the reasoning is unsound and, in any event, it is, as we have shown, contrary to the weight of authority.

Bard argues that a New York court, when and if enforcement is sought in that State, would probably refuse to recognize the judgment under the full faith and credit clause of the Federal Constitution. Leighton v. Roper, supra, is cited in support of this argument but it is of little, if any, benefit to Bard on the instant question. In that case, the court held that a New York State court, under a similar statute, had jurisdiction of an Indiana administrator of a deceased Indiana motorist. True, the court refused to pass upon the matter of the enforceability of the judgment in the Indiana courts, with the observation that such enforcement would depend upon the appropriate procedure of the State of Indiana. We agree with this view, which means that the matter of the enforceability of the judgment in the instant suit in a court of New York must be determined there and not here. We reject the contention of Bard that the court was without jurisdiction.

The principal contention of defendant Rice is that it sustained no employment relationship with Bard at the time of the collision and that the latter was acting in the capacity of an independent contractor. The jury by its special verdict found that Bard was an employee of Rice. Thus, the only question on review is whether there is any credible evidence in support of such finding. Obviously, this is an important question to Rice because its liability depends upon the answer.

Inasmuch as Bard is dead, most of the evidence as to the relationship which he sustained to Rice was furnished by the latter's sales manager, together with a mass of documentary evidence consisting mostly of letters and messages exchanged between the sales manager and Bard. Admittedly, Bard was a sales representative or commissioned salesman, selling merchandise for and on behalf of Rice, and his remuneration consisted of a commission on goods sold and delivered. Bard was...