Frewe v. Dupons Const. Co.

• Decision Date: 30 January 1968
• Citation: 155 N.W.2d 595,37 Wis.2d 676
• Parties: Estelle A. FREWE and Transcontinental Insurance Company, a Foreign Corporation, Plaintiffs-Respondents, v. DUPONS CONSTRUCTION COMPANY, Inc. and Wisconsin Natural Gas Company, Defendants-Respondents, City of Kenosha, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 595

155 N.W.2d 595

37 Wis.2d 676

Estelle A. FREWE and Transcontinental Insurance Company, a Foreign Corporation, Plaintiffs-Respondents, v. DUPONS CONSTRUCTION COMPANY, Inc. and Wisconsin Natural Gas Company, Defendants-Respondents City of Kenosha, Defendant-Appellant.

Supreme Court of Wisconsin.

Jan. 30, 1968.

K. Thomas Savage, Kenosha, for appellant.

Kenneth M. Kenney, Wolfe, O'Leary, Kenney & Wolfe, Milwaukee, for plaintiffs-respondents.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for Wis. Nat. Gas Co.; Heide, Sheldon, Hartley & Thom, Kenosha, of counsel.

BEILFUSS, Justice.

This case comes before the court on denial of a motion for summary judgment. The standard rules governing inquiry on summary judgment are set forth in Hyland Hall & Co. v. Madison Gas &amp Electric Co. (1960), 11 Wis.2d 238, 244, 245, 105 N.W.2d 305, 309, 310:

'As has been said many times by this court, the inquiry on summary judgment is not to decide the questions of fact raised by the affidavits and other proof, but to decide whether such questions exist and should be submitted to the trier of the facts * * *. The law applicable to granting or denying summary judgment has been stated many times by this court. In Voysey v. Labisky (1960), 10 Wis.2d 274, 277, 103 N.W.2d 9, we stated:

"The rule is well established in this state when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. Likewise, when there is credible evidence which under any reasonable view will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should be prevail. Elder v. Sage, 1950, 257 Wis. 214, 42 N.W.2d 919. We have often said that the power of the courts under the summary-judgment statute (sec. 270.635, 33 W.S.A., p. 309) is drastic and should be exercised only when it is plain that there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. De Bonville v. Travelers Ins. Co., 1959, 7 Wis.2d 255, 96 N.W.2d 509, 97 N.W.2d 392; Ondrejka v. Ondrejka, 1958, 4 Wis.2d 277, 90 N.W.2d 615; Braun v. Jewett, 1957, 1 Wis.2d 531, 85 N.W.2d 364; Udovc v. Ross, 1954, 267 Wis. 182, 64 N.W.2d 747, 66 N.W.2d 200."

The issue presented, therefore, is whether there are any triable issues of fact presented. The issue turns on two questions: (1) Whether the employment relation of Bailey with the city was such that it can be said as a matter of law that Bailey was acting outside the scope of employment at the time of his alleged negligence concerning the explosion; and (2) Does sec. 62.15 (11), Stats., insulate the city from liability for the negligence of its employee, Bailey.

It is settled law that a master is liable for the negligent acts of his servant when such acts are within the scope of the servant's employment. Kruse v. Weigand (1931), 204 Wis. 195, 235 N.W. 426; Eckel v. Richter (1926), 191 Wis. 409, 211 N.W. 158.

'A master is subject to liability for physical harm caused by the negligent conduct of servants within the scope of employment.' Restatement, 1 Agency (2d), p. 536, sec. 243.

The first question presented is whether Bailey was acting within the scope of his employment at the time of his alleged negligence concerning the explosion incident.

The city urges that Bailey was merely an 'inspector' on the job and consequently was acting outside the scope of his employment in the matter. The city bases this contention on the following provision of the contract specifications entered into between the city and Dupons.

'SECTION 25--INSPECTION

'No materials of any kind shall be used until they have been examined by the Engineer or some person authorized by him, who shall have full power to condemn any work or materials not in accordance with these specifications, and to require the Contractor to remove any work or materials so condemned, and at his own expense to replace such condemned work or materials to the satisfaction of the Engineer. The decision of the Engineer shall be final as to quality of workmanship and materials.

'SECTION 26--INSPECTORS

'The city shall appoint an inspector or inspectors whose duty it shall be to inspect all work and materials and to prevent any deviation from these specifications, and the Contractor will not thereby be relieved from his obligations to supervise the work and fulfill to the letter all terms of these specifications. If an inspector should be negligent or absent, or should consent to the allowance of inferior work, the Contractor will not thereby be excused or relieved from repairing or removing faulty work or material at his own expense.'

Concededly, these provisions define the inspector's duty. However, this definition does not constitute an express limitation upon the scope of the inspector's authority. Consequently, there is room for argument and evidential presentation that Bailey was given further duties in connection with his job. If such was the case, or if Bailey so acted with the knowledge and acquiescence of the city, his scope of employment may have been greater than that described in the contract provisions above.

From the affidavits before the trial court, questions are raised as to exactly what the scope of Bailey's employment was. There is testimony which indicates it is quite unclear whether Bailey's authority extended further than 'inspection.' The deposition of James M. Foote, Dupons' foreman on the job, revealed the following:

'Q How did it happen that the sewer lateral was constructed to the Isetts Building if it was not part of the original project?

'A It was a directive from the City to put it in.

'Q Who from the City directed to put it in?

'A It came to me from the City Inspector.

'Q Who was that?

'A Mr. Bailey--Robert Bailey.

'* * *

'Q As I understand your testimony, initially it was Bailey who told you about the requirement to have the lateral go into the Isetts Building?

'A Yes, my orders came from him.

'Q How did you get that?

'A Verbally.

'Q No work order?

'A I never saw any work order.

'* * *

'Q What was your understanding what Bailey's position was with reference to this 55th Street Job?

'A He was the City Inspector.

'Q What was your then impression of what an inspector was to do concerning that job?

'A He was to see that everything was installed according to specifications.

'Q By your understanding, did he have any supervisory over above you as to the job?

'A Yes, being that the City is the owner and he--the City Inspector's word, you might say, is law when you are doing a job or any inspector.

'Q Did he take--did he perform any physical activities insofar as that sewer job was concerned?

'A No, sir; outside of errands he ran a few errands.

'Q For you?

'A Yes, he would do that on his own. He was not compelled to do it.

'Q His job, by your understanding, was to see that you and the Dupons Company performed in keeping with the contract and specifications; is that right?

'A That's correct.

'Q And not beyond that?

'A No, he didn't have no absolute duties beyond that.

'* * *

'Q And in the course of the period that you had worked with him, he had from time to time given you specific instructions to do certain things incident to Dupons' performance of a particular job?

'A In a capacity of City Inspector, yes.

'Q And you observed his instructions when he gave you them?

'A Yes, I did.'

Furthermore, it is not entirely clear that the duties of 'inspection' exclude a certain amount of supervision or direction. Part of that duty, it seems, might be not only to inspect, but to see that the job is done right and direct how it is to be done or redone and corrected.

"Not every act which an agent or servant may do while he is in the place appointed for the service, or during the time in which he is engaged in the performance, can be deemed to be within (the course of the employment, or within) the scope of the authority. The test lies deeper than that; it inheres in the relation which the act done bears to the employment. The act cannot be deemed to be within the course of the employment unless upon looking at it, it can fairly be said to be a natural, not disconnected and not extraordinary, part or incident of the service contemplated." Seidl v. Knop (1921), 174 Wis. 397, 400, 182 N.W. 980, 981.

A certain amount of instruction and direction is not necessarily unnatural, disconnected or extraordinary so as to say it was outside the scope of Bailey's employment.

'It is argued that the warehouse employees had no authority from defendant's management to give instructions to the truckers. That does not relieve defendant from responsibility for what they did. There is no evidence that the practice was forbidden. The employees in question were in apparent charge of loading and unloading operations, they checked goods in and out, stamped freight bills, and the like. Truckers would naturally and properly comply with their requests as to such matters as stacking the ramps after use. Thus their acts in the premises were the acts of defendant. An employer cannot permit its rank and file emloyees to do things habitually in the course of their work that are very natural and reasonably to be anticipated, and then escape responsibility for their carelessness in the premises on the ground that they were not authorized to do such things.' Unrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 76, 77, 85 N.W.2d 772, 774 (Emphasis supplied.)

There is, therefore, a triable question of fact, viz, the scope of Bailey's employment with the city.

Whether the trial court felt, or this court feels, the evidence preponderated on one side or the other of the question...