Soczka v. Rechner
| Decision Date | 14 June 1976 |
| Citation | 242 N.W.2d 910,73 Wis.2d 157 |
| Parties | Alois SOCZKA, Jr., and Alois Soczka, Sr., Plaintiffs-Appellants, v. Jacob RECHNER et al., Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Crooks, Crooks & Low, Wausau, for appellants.
Terwilliger, Wakeen, Piehler, Conway & Rouse, S.C., Wausau, for defendants-respondents, Jacob Rechner and Rural Mut. Ins. Co.
Tinkham, Smith, Bliss, Patterson & Richards, Wausau, for defendants-respondents, Irvin A. Huebsch and American Family Mut. Ins. Co.
The judgments appealed from, dismissing the complaint of the plaintiffs against each of the defendants, are based on a jury verdict finding the plaintiff Alois Soczka, Jr., 45% negligent and defendants Jacob Rechner and Irvin Huebsch 30% and 25% negligent, respectively, in an accident in which Soczka's car collided with a tractor being driven by the defendant Huebsch. The questions on appeal are (1) Should Huebsch's negligence be imputed to Rechner on the theory that Huebsch was Rechner's agent? (2) Should the plaintiff here be allowed to recover under sec. 895.04 Stat., 1 where he is more negligent than any of the other individual tortfeasors but not more than 50% negligent?
On May 30, 1970, at approximately 1:00 a.m., Jacob Rechner drove Arthur Schultz to the farm of Leroy Lange where Schultz worked and maintained his residence. The Lange farm is located on Highway N in Marathon County. In the course of backing out of the Lange driveway Rechner proceeded all the way across Highway N and into the ditch on the opposite side of the road. He was unable to drive his car out of the ditch; and Schultz came to his assistance with a Lange tractor and a rope. The two tried unsuccessfully to pull the car out of the ditch.
At this point Irvin Huebsch came along Highway N in his truck. He stopped to remonstrate with Schultz because the tractor did not have its lights on, although the Rechner car did. Rechner then asked Huebsch for assistance, since they knew each other; and Huebsch offered to get a chain from his nearby home. Rechner encouraged him to do so. Huebsch left to get the chain while Schultz returned the tractor to Lange's yard and retired for the night. When Huebsch returned, he gave the chain to Rechner who hooked it to his car 2 while Huebsch parked his truck in the Lange yard and got the Lange tractor. Huebsch positioned the tractor, which now had its lights on, in front of Rechner's car. He backed up to five or six feet in front of the car before Rechner motioned him to stop. The tractor was then facing east southeast along Highway N and occupied most of the northern, westbound lane. Huebsch remained seated on the tractor while Rechner attempted to fasten the chain to it.
At this time the plaintiff, Alois Soczka, Jr., approached in his car from the east. Huebsch saw Soczka come over a crest in the road about 800 feet away. Huebsch continued watching the Soczka car right up to the time Soczka collided with the tractor. When he realized that Soczka was not going to stop, Huebsch yelled to Rechner to get out from behind the tractor.
At the trial Soczka testified that while approaching the tractor on Highway N he had passed the lights of an oncoming car and remembered nothing else. At the trial he testified that he was not blinded by the oncoming car, and that he never saw the tractor or the Rechner car, both of which had their lights on and were in his unobstructed path of vision. He did not apply his brakes and estimated his speed at the time of impact at between 40 and 50 miles per hour.
Soczka's car was demolished in the collision which pushed the tractor back until it bumped into Rechner's car. Soczka suffered numerous injuries, principally, to his face and head, which required extensive surgery. The jury awarded him $30,000 damages which are not at issue on this appeal. Rechner was also injured in the collision.
Soczka brought suit against Rechner and Huebsch, alleging that Rechner and Huebsch were jointly negligent in failing to take sufficient precautions to prevent the accident. No allegation was made that Huebsch was acting as Rechner's agent. At the trial, Soczka did not indicate that he was relying on principles of agency to combine the negligence of Rechner and Huebsch. The only evidence relevant to the determination of whether agency existed are two brief references to the fact that Rechner asked Huebsch for assistance and the testimony of Huebsch that Rechner had motioned him to stop while he was maneuvering the tractor into position in front of the car. No jury instruction or special-verdict question concerning agency was requested by Soczka.
After a verdict was returned, Soczka moved that Huebsch's negligence be imputed to Rechner on the theory that 'the uncontradicted evidence adduced at the trial clearly, and as a matter of law' established a principal-agent relationship between Rechner and Huebsch. Soczka also moved to conform the pleadings to the agency theory. The trial court denied these motions, pointing out that agency was not an issue raised by the pleadings and stating that to permit amendment of the pleadings after verdict would require a new trial on the agency issue. The trial court concluded that an agency relationship did not exist. Judgments were granted dismissing Soczka's cause of action against Rechner and Huebsch, from which judgments Soczka now appeals.
The first question is whether the trial court erred in refusing to find as a matter of law that an agency relationship existed between Rechner and Huebsch. The second question is whether this court should change the law to allow recovery in a situation where the plaintiff's negligence is no more than 50% of the total negligence of all parties but more than any individual defendant.
In the present case the issue of Huebsch's agency was not pled or tried or covered by the special-verdict or jury instructions. Plaintiff argues that he should be allowed to amend his pleadings and to secure judgment against the defendants based on a finding that, as a matter of law, Huebsch was Rechner's agent. It is within the trial court's discretion to allow amendment of pleadings until and even after...
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