Hanson v. Engebretson

• Decision Date: 03 December 1940
• Citation: 237 Wis. 126,294 N.W. 817
• Parties: HANSON v. ENGEBRETSON et al.
• Court: Wisconsin Supreme Court

237 Wis. 126

294 N.W. 817

HANSON

v.ENGEBRETSON et al.

Supreme Court of Wisconsin.

Dec. 3, 1940.

Appeal from a judgment of the Circuit Court for LaFayette County; S. E. Smalley, Judge.

Affirmed.

Action by Winifred Hanson, against Arthur Engebretson, an employee of Edward A. Chapman and others, co-partners, and the insurer of the co-partners, to recover under the death by wrongful act statute for the death of her husband caused by a collision of an automobile owned by the co-partners. Judgment was entered February 28, 1940, for the plaintiff against Engebretson and dismissing the complaint on the merits as against the co-partners and their insurer. From the portion of the judgment so dismissing the complaint the plaintiff appeals.

The plaintiff is the widow of Clarence Hanson who died as the result of injuries received in a collision on a highway between the automobile in which he was riding and another automobile. The complaint alleges that the automobile in which the deceased was riding was driven by defendant Engebretson; that Engebretson was driving the automobile in the business of his employers, the defendants Chapman, co-partners; that the Chapmans were conducting business as garage owners and automobile salesmen; that Engebretson was negligent in operating the automobile; that the negligence of Engebretson proximately caused the injuries to the deceased from which he died; and that the defendant General Casualty Company was the insurer of the defendants Chapman against accidental injuries caused by the operation of the automobile in which the deceased was riding when injured.

The defendants answered denying negligence of Engebretson and alleged that the deceased was driving the automobile at the time of the collision. The defendants also alleged that the automobile was not being operated in the business of the defendants Chapman at the time of the collision and that therefore they are not liable.

The case was submitted to the jury who by special verdict found (1) that Engebretson was driving the automobile at the time of the collision; (2) that Engebretson was negligent; (3) that his negligence proximately caused the death of the deceased; and (4) that at the time of the collision Engebretson was “performing duties incidental to and necessary to the conduct and operation of the sales agency and garage” of the defendants Chapman.

On motions after verdict the court held as matter of law that the deceased was a guest of Engebretson and not of the Chapmans, that the Chapmans and their insurer were not liable for Engebretson's negligence, dismissed the case as to them, and entered judgment on the verdict against the defendant Engebretson for the damages assessed by the jury.

The Chapmans conducted a garage and repair shop and sold cars. Engebretson was in their employ primarily as a salesman of cars, but subject to performance of such other duties as his employers should direct, except mechanical work. He was paid $60 a month and a five per cent. commission on sales of cars made by him. The Chapmans conducted places of business at Darlington and South Wayne. On the day of the injury Engebretson was directed to take one car from South Wayne to Darlington and bring back another car from Darlington to South Wayne for conditioning. He was forbidden by his employers to permit any one except prospective purchasers of cars to ride with him while on company business. On the way back he stopped at Gratiot, had dinner there and after dinner spent an hour or so in a tavern. He there met the deceased and Leon Barry. The three left the tavern together in the automobile to see Howard McGranahan at Wiota. McGranahan's wife was a sister of Engebretson's wife and a sister of Hanson. Both Hanson and Barry were killed in the collision.

There is no evidence as to the purpose of Engebretson in making the trip from Gratiot to Wiota. The trip was a diversion from the road from Gratiot to South Wayne. The car the deceased and Engebretson were in was owned by defendants Chapman. There is no evidence that Hanson was interested in buying a car. Hanson owned a Chevrolet car. He was a W. P. A. Foreman working at a quarry. He carried the men working at the quarry to and from the quarry and received twenty-five cents a round trip from each. The coverage of the insurance policy was limited to injuries caused by operation of the car “incidental and necessary in the conduct of the business” of the Chapmans as garage operators and car salesmen. It contained no clause extending coverage to Engebretson.

Boyle & Boyle, of Darlington, and Sanborn, Blake & Aberg, Ernest H. Pett, and Edwin Conrad, all of Madison, for appellant.

Kopp & Brunckhorst, of Platteville, for respondents.

FOWLER, Justice.

From the foregoing detailed statement of facts it appears that this is a host-guest, master-servant automobile collision case, in which the widow of a guest who was killed in the collision sues the servant, the master and the master's insurer to recover under the death by wrongful act statute, sec. 331.03, because of the negligence of the servant in driving the car. The jury found the servant driver causally negligent and that the servant was engaged in the master's business at the time of the collision. The court awarded judgment against the servant for the damages assessed by the jury, but dismissed the complaint as against the master and the insurer. The plaintiff appeals from the portion of the judgment dismissing the complaint. The only error assigned is the dismissal.

[1] It is settled by the decisions of this court that a master is not responsible for injuries negligently caused by his servant in operating the master's car to one whom the servant without authority takes into the car as a guest, even though the servant is at the time engaged on the master's business. Seidl v. Knop, 174 Wis. 397, 182 N.W. 980;Mittleman v. Nash Sales Co., 202 Wis. 577, 232 N.W. 527;Hartman v. Badger Tobacco Co., 210 Wis. 519, 246 N.W. 577. The Hartman case is the last word of this court on the point. The point is fully discussed in the opinion in that case. In this situation there is no need to cite decisions of courts in other jurisdictions.

The appellant claims that the rule above stated does not apply to the instant case because (1) the Chapmans (master) stated in reporting to the Industrial Commission an injury to Engebretson that the injury was received in course of his employment; (2) the evidence shows that the servant had authority to take a prospective purchaser of a car into the car he was driving...