Gerretson v. Rambler Garage Co.

• Decision Date: 14 May 1912
• Citation: 136 N.W. 186,149 Wis. 528
• Parties: GERRETSON v. RAMBLER GARAGE CO.
• Court: Wisconsin Supreme Court

149 Wis. 528

136 N.W. 186

GERRETSON

v.RAMBLER GARAGE CO.

Supreme Court of Wisconsin.

May 14, 1912.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Fred W. Gerretson, administrator with will annexed of Wilhelmina Gerretson, deceased, against the Rambler Garage Company.From a judgment for defendant, plaintiff appeals.Reversed and remanded.

This action was brought by the plaintiff as administrator with the will annexed of the estate of Wilhelmina Gerretson, deceased, to recover upon two causes of action--one in favor of the estate of deceased, and the other in favor of the beneficiaries of said deceased under the death statute for the benefit of her children on account of the negligence of the defendant.Damages are claimed in the sum of $5,000 under the first cause of action and in the sum of $3,500 under the second cause of action.The answer admits that Wilhelmina Gerretson died testate on the 16th day of December, 1909, and the representative capacity of the plaintiff; that deceased was injured at the time and place alleged in the complaint, and that she was a widow; also admits the corporate existence of the defendant; and denies generally upon information and belief the other allegations of the complaint.The court granted a nonsuit as to the second cause of action, and, after the evidence was all in, directed a verdict for the defendant.Judgment was entered in favor of the defendant dismissing the complaint, from which this appeal was taken.

The evidence tends to show that during the afternoon of Sunday, November 7, 1909, William F. Gerretson, a son of deceased, called defendant's garage by telephone, and ordered a seven-passenger automobile to come to his home on Garfield avenue in the city of Milwaukee for a drive about the city, carrying himself, members of his family, and friends.In response to the call, one of defendant's seven-passenger 45 horse power automobiles, driven by defendant's servant, L. D. Cook, went to the home of W. F. Gerretson under instructions from defendant's foreman to drive the machine where directed, and Mr. and Mrs. W. F. Gerretson and Mr. and Mrs. James Donovan there entered the car, Mr. Gerretson directing the chauffeur to drive to 1820 Grand avenue, the home of R. W. Gerretson, another son of deceased.There deceased and her granddaughter entered the car, and the chauffeur was directed to drive to the Gerretson store, 107 Wisconsin street, thence to several places on Milwaukee street, thence to a point on Van Buren street between Knapp street and Juneau avenue.The day was misty and rainy, and the sides, top, and glass wind shield of the automobile were up to protect the occupants.The pavement was wet and slippery, and there were tire chains in the car, furnished by defendant to meet the very conditions then presented by wet and slippery pavements.The chauffeur negligently failed to put them on because he“did not want to get his hands and clothes soiled.”After leaving the Peacock home on Van Buren street on the return trip to the home of R. W. Gerretson on Grand avenue, the chauffeur selected his own route and drove north on Van Buren street to Knapp street, west on Knapp street to Milwaukee street, and south on Milwaukee street in a straight line five blocks to its intersection with Mason street.Going south on Milwaukee street, the automobile was driven at a speed of 18 to 20 miles an hour in violation of the ordinance of the city limiting the speed to 12 miles per hour.When the street car, running west on Mason street, came into view, the speed with which the automobile was driven made a collision between it and the car inevitable, and to minimize its effect the chauffeur turned sharply the corner at Mason and Milwaukee streets going west.The street car and automobile reached the west line of Milwaukee street at the same time, and, the speed of the automobile being so great, its rear wheels skidded on the pavement, and the rear end of the automobile collided with the street car at its forward truck, just behind the front platform.The force of the impact was so great as to throw deceased with such violence against the left side of the automobile as to completely fracture five ribs and severely bruise her hip and back.The automobile was held fast to the street car for a few minutes, then freed, and ran down the hill on the north side of Mason street about 60 feet.After the release from the street car, W. F. Gerretson and James Donovan administered to the two injured ladies, and the wrecked machine was then driven by the chauffeur to the garage, about a block from the place of the accident, and the deceased and Mrs. Donovan were lifted into another automobile and driven by the chauffeur, Cook, to the home of W. F. Gerretson, into which they were carried.From this time until her death deceased suffered great pain, and during that period was confined almost continuously to her bed, being moved with difficulty and never without assistance.From the injuries sustained and the pain and suffering undergone death ensued December 16, 1909.It further appears that during the entire period of hiring, Cook, as driver of the automobile, was acting wholly within the scope of his employment, and in compliance with the directions of the defendant.Paul D. Durant, for appellant.

Lines, Spooner, Ellis & Quarles, for respondent.

KERWIN, J.(after stating the facts as above).

There is ample evidence to entitle the jury to find that the chauffeur so negligently operated the car as to cause the injury in question.But it is insisted by respondent that the directed verdict for defendant and judgment dismissing the complaint should be upheld for the following reasons: (1) That the chauffeur was the servant of F. W. Gerretson, the hirer of the car; (2) that, even though the chauffeur was the agent of defendant, still no negligence was shown because the negligence of the chauffeur was not chargeable to defendant; and (3) that the contract between Gerretson and defendant was void because made on Sunday; therefore no recovery could be had upon it.

[1] 1.There is no evidence in the case tending to show that the chauffeur was the servant of deceased or of F. W. Gerretson.The defendant furnished the car with the chauffeur to operate it, and the chauffeur had charge and management of the car.The deceased or F. W. Gerretson exercised no control as to the operation and management of it.The chauffeur, therefore, was the servant of the defendant.Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648;Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652;Morris v. Trudo, 83 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33;Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533, 19 L. R. A. (N. S.) 332;Frerker v. Nicholson, 41 Colo. 12, 92 Pac. 224, 13 L. R. A. (N. S.) 1122, 14 Ann. Cas. 730;Murray v. Dwight, 161 N. Y. 301, 55 N. E. 901, 48 L. R. A. 673;Quarman v. Burnett, 6 M. & W. 499.

[2] 2.The respondent in support of the judgment below strenuously insists that the plaintiff cannot recover because the right to recover must be traced through a Sunday contract, and relies mainly upon Sentinel Co. v. Mieselbach M. W. Co., 144 Wis. 224, 128 N. W. 861, 32 L. R. A. (N. S.) 436, 140 Am. St. Rep. 1007.In that case the action was brought to recover upon quantum meruit for services performed on...