Novak v. Zastrow

• Decision Date: 07 January 1930
• Citation: 200 Wis. 394,228 N.W. 473
• Parties: NOVAK v. ZASTROW.
• Court: Wisconsin Supreme Court

200 Wis. 394

228 N.W. 473

NOVAK

v.ZASTROW.

Supreme Court of Wisconsin.

Jan. 7, 1930.

Appeal from a judgment of the Circuit Court for Green County; George Grimm, Circuit Judge. Reversed.

Action by Edward Novak, plaintiff, against Douglas Zastrow, defendant, commenced on the 28th day of November, 1928, to recover damages resulting from an automobile collision. From a judgment in favor of the plaintiff, rendered July 9, 1929, the defendant appeals.

Crownhart, J., dissenting.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

Lehner & Lehner, of Princeton, for respondent.

OWEN, J.

The defendant and his wife live in the city of Monroe. On the 19th day of November, 1928, his wife drove to Madison in his automobile to bring her mother to the Zastrow home. On the way back from Madison there was a collision between the car of plaintiff and the car driven by Mrs. Zastrow. The verdict of the jury found facts upon which the plaintiff was entitled to recover, if Mrs. Zastrow was the agent of the defendant in driving the car, and judgment was rendered in favor of the plaintiff. Although the sufficiency of the evidence establishing the facts upon which liability is predicated is challenged upon this appeal, it will be unnecessary for us to review the evidence in this respect, as we conclude that Mrs. Zastrow was not the agent of the plaintiff, for which reason the judgment must be reversed.

The question of whether Mrs. Zastrow was the agent of her husband, the defendant, was left for the court to decide. The court first decided that Mrs. Zastrow was not the agent of her husband, but, after its attention was called by counsel to Enea v. Pfister, 180 Wis. 329, 192 N. W. 1018, and Borger v. McKeith (Wis.) 224 N. W. 102, it made a finding that, “at the time of the collision described in the complaint, one Myrtle Zastrow was driving the automobile owned by the defendant, Douglas W. Zastrow, as his agent and in pursuit of his business and within the scope of her authority,” and then entered judgment in favor of the plaintiff.

The evidence shows that the car was owned by the defendant; that he had purchased the same before his marriage; that he permitted his wife to take it for the purpose of going to Madison and bringing her mother to the Zastrow home; and that the trip was made for no other purpose. In view of this evidence, showing without dispute the circumstances under which the trip was made, the rule of Enea v. Pfister, 180 Wis. 329, 192 N. W. 1018, applied in Borger v. McKeith (Wis.) 224 N. W. 102, where the evidence bearing on the question of agency was meager and in dispute, has no application. The rule of Enea v. Pfister, which raises a presumption that a car is being used in the business of the owner, was adopted merely because of the exigencies of justice, and to cast the burden on the one in possession of the facts, but the reason of the rule disappears and the rule itself loses its probative force where the evidence is undisputed concerning the purposes for which the car was being used at the time of the accident.

[1][2] We have here, then, a plain question of law, whether the wife is acting as the agent of her husband when she takes his car and goes after her mother to bring her to the family home. The law presumes that a wife has authority to pledge the credit of her husband for necessaries, but, further than this, the question of whether at any given time she is acting as his agent is to be determined by the same principles which apply to any other parties. The ordinary rules as to actual, apparent, or ostensible agency must be applied. 13 R. C. L. 1178. It appears that the mother was desirous of visiting at Monroe--at the Zastrow home as well as with another of her daughters who resided there. No legal duty rested upon the defendant, or his wife, for that matter, of furnishing her transportation from Madison to Monroe. Certainly no such duty rested upon the defendant. If such duty rested upon the defendant, and he performed that duty by directing his wife to take his car and bring her mother to Monroe, then it would quite plainly appear that in the performance of that duty the wife was acting as her husband's agent. In the absence of any such duty, it cannot be said that upon the trip the wife was prosecuting the husband's business. Plainly an implied or ostensible agency cannot be spelled out of the circumstances. Of course the husband might have assumed the responsibility of providing this transportation, and, if he had done so, and directed or requested his wife to take his car and bring her mother to Monroe, then an express agency would have resulted. However, there is no evidence of any such request or direction. The situation is merely one where the mother desired to visit her daughters in Monroe. One of her daughters, the defendant's wife, took the defendant's car and went after her. This was a courtesy on the part of the defendant and his wife extended to the mother. The defendant furnished the car, his wife drove it, thus providing the mother with the means of accomplishing her desires. It was a combined kindness, a courtesy, a gratuity, extended by the husband and his wife. It was no part of the defendant's business. It resulted in the discharge of no obligation which he owed. In driving the car, the defendant's wife was simply performing a service for her mother. She was not in the prosecution of her husband's business so that he became bound for her acts or liable for her negligence.

Counsel for respondent stresses the fact that Mrs. Zastrow did some shopping in Madison. This is...