Raasch v. Dulany, 64-C-357

• Decision Date: 28 September 1967
• Docket Number: No. 64-C-357,65-C-314.,64-C-357
• Citation: 273 F. Supp. 1015
• Parties: Howard RAASCH, Plaintiff, v. Randolph G. DULANY, d/b/a D. & C. Sales & Service, Liberty Mutual Insurance Company, a foreign corporation, Travelers Indemnity Company, a foreign corporation, Avis Rent-A-Car System, Inc., a foreign corporation, and Avis, Inc., a foreign corporation, Defendants. Burnette RAASCH, Plaintiff, v. Randolph G. DULANY, d/b/a D. & C. Sales and Service, Liberty Mutual Insurance Company, a foreign corporation, Travelers Insurance Company and/or Travelers Indemnity Company, a foreign corporation, Defendants. AVIS RENT-A-CAR SYSTEM, INC., a foreign corporation, and Avis, Inc., Defendants and Third-Party Plaintiffs, v. Howard RAASCH and General Casualty Company of Wisconsin, a Wisconsin corporation, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

273 F. Supp. 1015

Howard RAASCH, Plaintiff, v. Randolph G. DULANY, d/b/a D. & C. Sales & Service, Liberty Mutual Insurance Company, a foreign corporation, Travelers Indemnity Company, a foreign corporation, Avis Rent-A-Car System, Inc., a foreign corporation, and Avis, Inc., a foreign corporation, Defendants.

Burnette RAASCH, Plaintiff, v. Randolph G. DULANY, d/b/a D. & C. Sales and Service, Liberty Mutual Insurance Company, a foreign corporation, Travelers Insurance Company and/or Travelers Indemnity Company, a foreign corporation, Defendants.

AVIS RENT-A-CAR SYSTEM, INC., a foreign corporation, and Avis, Inc., Defendants and Third-Party Plaintiffs, v. Howard RAASCH and General Casualty Company of Wisconsin, a Wisconsin corporation, Third-Party Defendants.

Nos. 64-C-357, 65-C-314.

United States District Court E. D. Wisconsin.

September 28, 1967.

Stephen R. Miller, of Sabrowsky, Raasch, Reidenbach & Miller, Milwaukee, Wis., for plaintiffs.

Kurt H. Frauen, of Wickham, Borgelt, Skogstad & Powell, Milwaukee, Wis., for defendants Randolph G. Dulany and Liberty Mutual Ins. Co.

O. Robert Hauser, of Immell, Herro, Buehner, DeWitt & Sundby, Madison, Wis., for defendants Avis Rent-A-Car System, Inc. and Avis, Inc.

Stephen C. de Vries, of de Vries, Hollander & Vlasak, Milwaukee, Wis., for third-party defendants, Howard Raasch and General Casualty Co. of Wis.

OPINION AND ORDER

REYNOLDS, Judge.

Before this court is a motion by one of the defendants, Avis Rent-A-Car System, Inc. (hereinafter referred to as "Avis"), for summary judgment.

On November 25, 1966, an order was entered on stipulation that two above-captioned lawsuits pending before this court be consolidated for trial. These suits arose out of an automobile accident which occurred on October 8, 1963. Plaintiffs are Howard Raasch and Burnette Raasch who were driver and passenger, respectively, of one of the cars involved. Their complaints allege that each named defendant is vicariously liable for damages because of the negligence of the driver of the other automobile, William J. Vadnais, who was killed in the accident. According to the complaints, Vadnais was an employee of one of the defendants, Randolph G. Dulany, d/b/a D. & C. Sales and Service (hereinafter referred to as "D. & C."), and was acting within the scope of his employment. D. & C. allegedly was engaged in a joint enterprise and/or was an agent of another one of the defendants, Avis Rent-A-Car System, Inc. Avis admits to being the "licensor" of D. & C. but not to being its "principal" for tort liability purposes. Strongly disclaiming the existence of an agency relationship, Avis has moved for summary judgment.

Under the federal summary judgment rule (F.R.Civ.P. 56), summary judgment must be entered if documents on file with the court establish (1) "that there is no genuine issue as to any material facts," and (2) "that the moving party is entitled to a judgment as a matter of law." According to Professor Moore,

"The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.

"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." 6 Moore, Federal Practice § 56.153, at 2335-6 (2d ed. 1966). See also Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944).

"On summary judgment," the Supreme Court has said, "the inferences to be drawn from the underlying facts contained in such materials as are presented to the court must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), 82 S.Ct. 993, 994, 8 L.Ed.2d 176. Rule 56 "should be cautiously invoked." Associated Press v. United States, 326 U.S. 1, 6, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). The United States Court of Appeals for this Circuit has said that if "any doubt remains as to the existence of a genuine issue of material fact, such doubt must be resolved against the movant for summary judgment and the motion for summary judgment must be denied." Montoux v. Gulling Auto Electric, 295 F.2d 573, 576 (7th Cir. 1961).

For the purposes of this motion, Avis does not contest the allegations as to Vadnais' negligence, nor does it question the claim that he was acting within the scope of his employment by D. & C. Instead, Avis concentrates its fire on another issue; namely its relationship with D. & C. Specifically, it contends that there is nothing in the documents on file in this court that could establish an agency or joint enterprise between these two parties; accordingly, that there is no basis for imposing tort liability for Vadnais' negligence on Avis; and, thus, that Avis is entitled to judgment as a matter of law.

Terminological confusion has been rampant in agency law. Accordingly, this court explicitly adopts, for the purpose of this opinion, the terminology of Restatement, Agency 2d. The Restatement, Agency 2d, defines "Agency" as "the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Id. § 1(1). "The one for whom action is to be taken is the principal." Id. § 1 (2). "The one who is to act is the agent." Id. § 1(3). "A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service." Id. § 2(1). "A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master." Id. § 2(2). According to the Comment to § 2 of the Restatement, "A master is a species of principal, and a servant is a species of agent."

The Restatement says that one of the chief reasons for distinguishing between the two terms, i. e. between "servants" on the one hand and the larger class, "agents," on the other, is to distinguish between (1) "the kind of representatives for whose physical conduct the one for whom they act is made responsible" (servants) and (2) "other representatives for whose physical conduct the one for whom they act is not responsible" (agents). Restatement, Agency 2d, Introductory Note to Title B, Torts of Servants. Accordingly, this court uses the term "master" to indicate the kind of "principal" that is responsible for the negligent physical conduct of his "servants." Restatement, Agency 2d §§ 219, 250. Our choice of terms is in accord not only with the Restatement, but also with Corpus Juris Secundum and American Jurisprudence.

The law governing the imposition of tort liability on "masters" for the torts of "servants" is, in comparison, fairly clear.¹ "Masters" are civilly liable for those negligent acts committed by their "servants" while acting within the scope of their employment. 35 Am.Jur., Master and Servant § 532; 57 C.J.S. Master and Servant § 570. Furthermore, "a master is liable for acts done, by one whom the servant employs, with express or implied authority from the master, or with the master's acquiescence or ratification, to assist the servant in the master's work." 57 C.J.S. Master and Servant § 564a; accord 35 Am.Jur., Master and Servant § 540. Also, participants in a joint adventure may each be liable for torts of "servants" of the joint undertaking. 48 C.J.S. Joint Adventures § 14e; 30 Am.Jur., Joint Adventures § 56. Accordingly, if Avis is either D. & C.'s "master," or if it is engaged in a joint adventure with D....