Sheehan v. Lewis

• Decision Date: 30 April 1935
• Citation: 260 N.W. 633,218 Wis. 588
• Parties: SHEEHAN v. LEWIS ET AL.
• Court: Wisconsin Supreme Court

218 Wis. 588

260 N.W. 633

SHEEHAN

v.LEWIS ET AL.^a1

Supreme Court of Wisconsin.

April 30, 1935.

Appeal from a judgment of the Municipal Court of Kenosha County; Calvin Stewart, Municipal Judge.

Action by Lillian Schroeder Sheehan, administratrix of the estate of James Frederick Sheehan, deceased, against Ervin Lewis and others. From a judgment in favor of plaintiff against defendants, defendants appeal.--[By Editorial Staff.]

Affirmed.

This is an action brought by the plaintiff to recover damages for the death of her husband alleged to have been caused by the wrongful act of the defendant Ervin Lewis resulting from an automobile collision in which it is claimed that said Ervin Lewis at the time of the collision was acting as the agent of the defendant Hathaway Baking Corporation. The Liberty Mutual Insurance Company is joined as a casualty insurance carrier for the principal defendants, and the Century Indemnity Company is joined by virtue of a contingent liability policy.

The collision resulting in the injuries and death of James Frederick Sheehan occurred on October 31, 1932, at the intersection of Highway 173 and the Kenosha road in Lake county, Ill. The action was commenced October 27, 1933; case tried to the court and jury, resulting in a special verdict in plaintiff's favor, on which judgment was entered on June 30, 1934, in favor of the plaintiff and against the defendants Ervin Lewis and Hathaway Baking Corporation for $10,692.68 and against the Liberty Mutual Insurance Company as casualty insurance carrier for $10,642.48, and contingently against the Century Indemnity Company for $10,214.68; from which judgment defendants appealed.

The material facts will be stated in the opinion.

L. E. Vaudreuil, of Kenosha, and Otjen & Otjen and Coleman & Barry, all of Milwaukee, for appellants.

Quarles, Spence & Quarles, of Milwaukee (Victor D. Werner and Jefferson D. Burrus, both of Milwaukee, of counsel), for respondent.

MARTIN, Justice.

Plaintiff is the widow of James Frederick Sheehan and brings this action in her capacity as administratrix of her husband's estate. At the time of his death the deceased was a resident of Lake county, Ill. The defendant Lewis is a resident of Kenosha county, Wis., and at the time in question was the branch manager of the defendant Hathaway Baking Corporation at its Kenosha office and place of business. The Hathaway Baking Corporation is organized under the laws of Massachusetts, is licensed to transact business in Wisconsin, and maintains offices and places of business in the cities of Milwaukee and Kenosha.

On the morning of October 31, 1932, the defendant Lewis was directed by the Milwaukee sales manager of the defendant Hathaway Baking Corporation to make a business trip for said corporation to two towns in Illinois. The business was urgent and the trip had to be made that morning. When Lewis received instructions to make this trip into Illinois, none of the Hathaway Baking Corporation's trucks or cars were available for use. On the telephone he discussed with the Milwaukee sales manager the subject of the use of his own car. The sales manager of the defendant Hathaway Baking Corporation testified: “It didn't make any difference to me what he used, as long as he got down there.” Lewis had used his own car, a Dodge 1929 coupé, on company business to the knowledge of the sales manager on one prior occasion. At the trial it was stipulated of record that at the time of the accident the defendant Lewis was returning from business which he had transacted for the defendant Hathaway Baking Corporation in Illinois and that he was on the route necessary for him to take in order to return to his employer's place of business in the city of Kenosha.

Highway 173 is an arterial highway paved with concrete eighteen feet wide, extending in a general easterly and westerly direction. The old Kenosha road is a graveled highway extending in a general northerly and southerly direction. When the collision occurred the deceased Sheehan was operating his Chevrolet automobile upon Highway 173, traveling in a westerly direction; the defendant Lewis was operating his Dodge coupé in a northerly direction upon the old Kenosha road. The collision resulting in the injuries and death of Mr. Sheehan occurred at the intersection of said highways.

At the time of his death deceased was twenty-seven years of age and had worked steadily since his marriage at a salary of $120 per month. Deceased left surviving him Lillian Schroeder Sheehan, his wife, who was solely dependent upon him for her support and who was at said time being supported by him.

At the time of said collision there was in force and effect a policy of automobile liability insurance issued by the defendant Liberty Mutual Insurance Company on January 1, 1932, to cover up to the limit of $10,000 for one person and up to the limit of $5,000 for property damage on the cars and trucks used in the Hathaway Baking Corporation's business. This policy contained a “rider” attached which provided as follows: “Effective January 1, 1932, it is * * * agreed * * * that the protection afforded by said policy is hereby extended * * * to include protection in respect to the * * * use of motor vehicles put into use subsequent to the date of said policy by the Hathaway Baking Corporation. In consideration * * * the assured * * * agrees to report to the company as promptly as convenient all motor vehicles so put into use * * *.” This policy contains the following provision (paragraph 4): “If any conditions of policy conflict with statutory law of any state or province, such conflicting condition shall be inoperative in such state or province in so far as they are in conflict with such law, and the law of the state or province shall apply.”

The Century Indemnity Company policy provides (paragraph g): “Any specific statutory provision in force in the state in which it is claimed that the assured is liable for any such loss as is covered hereby shall supersede any provision in this policy inconsistent therewith.”

The plaintiff pleaded the several sections of the Illinois statutes which were in force and effect at the time in question, and alleged that the defendant Lewis, acting in the course of his duties with and as the agent, servant, and employee of the defendant Hathaway Baking Corporation, just prior to and at the time of the collision, failed to exercise ordinary care in the management and operation of his automobile; that he failed to have same under proper control; failed to keep a proper lookout for other automobiles upon the highway; that he operated his...