Reynolds v. Wargus

• Decision Date: 10 March 1942
• Citation: 240 Wis. 94,2 N.W.2d 842
• Parties: REYNOLDS et al. v. WARGUS et al.
• Court: Wisconsin Supreme Court

240 Wis. 94

2 N.W.2d 842

REYNOLDS et al.

v.WARGUS et al.

Supreme Court of Wisconsin.

March 10, 1942.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Judge.

Affirmed.

This action was commenced on February 27, 1941, by Howard Reynolds, Eugene Barton, a sole trader doing business under the firm name and style of the Barton Truck Line, Connecticut Fire Insurance Company, a corporation, and Equity Mutual Insurance Company, a corporation, plaintiffs, against Eugene G. Wargus and New Amsterdam Casualty Company, a corporation, defendants, to recover damages for injury to the person and property of the plaintiff Reynolds and to the property of the other named plaintiffs, resulting from an automobile accident which occurred on November 1, 1940, on United States highway 16 in La Crosse county, when the Reynolds truck was struck by a car driven by the defendant Wargus and insured by the defendant New Amsterdam Casualty Company, a corporation. Case was tried to the court and jury. By its special verdict, the jury found that at the time of the collision LaVaughan Simpson was the owner of the automobile driven by defendant Wargus; that Wargus was driving the car with the consent of Simpson; that Wargus was causally negligent in respect to lookout, management and control, and speed; that Reynolds was not negligent; that Wargus was one hundred per cent negligent; and assessed damages in favor of the several plaintiffs totalling approximately $22,500. The usual motions were made after verdict. After hearing thereon, an order was entered denying the motion of the defendant New Amsterdam Casualty Company, and granting the motion of plaintiffs for judgment on the verdict; pursuant to which, judgment in favor of the respective plaintiffs was entered against defendants on the 23d day of August, 1941. The defendant New Amsterdam Casualty Company, a corporation, appeals.

Hale & Skemp, of La Crosse, for appellant.

Higbee & Higbee, of La Crosse, for defendant Eugene G. Wargus.

Gordon, Law, Brody & Johns, of La Crosse, for respondents Reynolds et al.

MARTIN, Justice.

The ownership of the car driven by the defendant Wargus at the time of the accident is the bone of contention. Upon that issue and the cooperation of Wargus depends the liability of the appellant under its coverage policy. The appellant contends that the court erred in not directing a verdict in its favor; in the admission and rejection of evidence; in its instructions to the jury; and in refusing a separate trial on the issue of coverage. On the evidence there was a sharp issue of fact as to the ownership of the car driven by Wargus, appellant contending that Simpson had sold the car to Wargus the day before the accident. This was denied on behalf of the plaintiffs, and Wargus testified that while he had had some negotiations with Simpson relative to purchasing the car, he hadn't agreed to buy it. He further testified that he told Simpson he would like to go to La Crosse and try the car; that Simpson let him take the car; that at that time he had not definitely made up his mind to buy it. While on the La Crosse trip the accident occurred. There is evidence that Wargus, while at the scene of the accident, stated to county highway patrol officers that he owned the car. It will serve no useful purpose to state or analyze the conflicting evidence bearing on the ownership of the car. Suffice to say that the trial court properly held that the evidence presented a jury issue. We cannot say there is no credible evidence to sustain the finding of the jury.

The appellant contends that the court erred in not directing a verdict in its favor because of failure of the defendant Wargus to cooperate in the defense of the case. It is argued that Wargus failed to appear at the trial. It appears that on and for sometime prior to November 1, 1940, Wargus was a sergeant in the army, stationed at Camp McCoy, an army camp located near Sparta, Wisconsin, about thirty miles from La Crosse. The trial of this case was begun in the court below on the 28th day of April, 1941. On April 12, 1941, Sergeant Wargus left Camp McCoy with other soldiers under what is known as a “sealed order” of the war department. Appellant also contends that Wargus, in his deposition on adverse party examination, consciously testified contrary to an earlier statement which he had given to the attorneys for the appellant insurance company, in which statement Wargus said: “Simpson and I agreed on all terms. I was to take over his payments of $18.28 per month, and as soon as things were straightened out he was to turn over title to me. Nothing was said as to what I should pay him over the amount of the payments * * *. The only reason I drove it (car) that day was because I felt sure the deal was settled. We had gone over to Dargel's garage to see about the transfer, and they said that when the finance company man came along that they would make arrangements to have him see us * * *. I haven't made any further payments since the first payment I made. I haven't heard from the finance company as to what they are doing. I heard that there might be some refund coming from the finance company, but I didn't know how much. Sergeant Simpson told me it might amount to $50 or $60. * * *” Upon his adverse examination on March 10, 1941, before a court commissioner, Wargus testified that on October 31, 1940, he loaned Simpson $18.82 to make a payment to the finance company on his car; that he had on previous occasions loaned Simpson money. He further testified: “I did not give him the money with the understanding it was to be a payment on the car and I was to have the car if arrangements could be made. Outside of the fact of arranging to see if it would be agreeable to the finance company, this car had been driven on a round trip to Philadelphia and back and I wanted to take it out on a trial basis.”

It appears that the Motors Acceptance Corporation, located at La Crosse, held a chattel mortgage or a conditional sales contract on the Simpson car; that during such negotiations as were had between Simpson and Wargus there was some discussion as to what arrangements would have to be made with the finance corporation in the event of the sale of the car. In this connection Simpson and Wargus went to the Dargel garage in Sparta to inquire if a transfer could be made. They were told that one of the agents of the finance corporation would be at Sparta the following...