Strack v. Strack

• Decision Date: 07 February 1961
• Citation: 107 N.W.2d 632,12 Wis.2d 537
• Parties: Nettie STRACK, Respondent, v. Clarence J. STRACK, Defendant, Robert E. Tracy et al., Appellants.
• Court: Wisconsin Supreme Court

Page 632

107 N.W.2d 632

12 Wis.2d 537

Nettie STRACK, Respondent, v. Clarence J. STRACK, Defendant Robert E. Tracy et al., Appellants.

Supreme Court of Wisconsin.

Feb. 7, 1961.

Crosby H. Summers, Janesville, for appellant.

Oestreich, Nowlan & Mouat, Louis D. Gage, Jr., Janesville, for respondent Clarence J. Strack.

Dempsey & Robinson, Whitewater, for respondent Nettie Strack.

BROWN, Justice.

The affidavits filed in support of and in opposition to the motion present a question of law without any substantial issues of material fact to be tried. Therefore this is a case proper to be disposed of by summary judgment. Laffey v. Milwaukee, 1959, 8 Wis.2d 467, 472, 99 N.W.2d 743.

The affidavits show without dispute that Flodeen was hired by the appellants to work on appellants' farms near Janesville. His work day begins when he reaches the 'home farm', usually about 7:00 a. m. and ends about 2:00 p. m. His pay starts when he gets to the home farm. When he arrives there a foreman tells him and other employees where they shall work. The employer then transports the workers to the various fields where they are to work. At the end of the work day the truck brings them back to the home farm and they go their several ways by means of their own to their homes or to other destinations.

On the day of the accident Flodeen came to the home farm in his own automobile. A foreman told him which field he was to work in where he was to drive a tractor. The truck with a driver was on hand to take him and the other workers to the fields. The weather threatened rain and Flodeen told the foreman that he would drive his own car to the designated field so that if rain began and field work was discontinued he would not have to wait around for the truck to come for him but could start back to Janesville without delay. He had an afternoon job in Janesville for another employer. The foreman made no objection to this, and it was not unusual for employees to come to the fields in their own automobiles instead of in the farm truck. On this occasion when the truck was ready to start with the other members of the working party, the foreman again asked Flodeen if he was going with them and Flodeen said he was not. Thereupon the truck drove off and soon afterwards Flodeen started in his own car to the field. On the way there Flodeen collided with the automobile of the co-defendant, Clarence Strack. Nettie Strack, the plaintiff, wife of Clarence suffered personal injuries in the collision. She has brought this action against her husband and the trustees of the estate which employs Flodeen.

Uncontradicted affidavits state positively that at the time and place of the accident Flodeen's use of his car was at his own instance and for his own purposes without intent to use it to serve his employer. Affidavits in opposition allege that use by employees of their own cars did produce some benefit to the employer. The affidavits say that such benefits would be that employees could get to their jobs quicker and start work earlier; in case of rain the employees could come back to the home farm more quickly to be assigned to jobs under cover; the employees would not stand around in the rain, perhaps get sick and so deprive the employer of their services.

The trial court determined:

'* * * a jury issue exists as to whether the employee, Flodeen, had stepped aside the business of his principal to accomplish an independent purpose of his own, or whether he was actuated by an intent to carry out his employment and to serve his master.'

We find there is no jury issue because the affidavits show that the material facts are undisputed, to wit:

Flodeen had reported for work and from that time forward he was being paid for his time. He was assigned to a job and transportation to the job site was offered him by his employer. He was not required to accept the transportation provided and Flodeen declined to avail himself of it. He informed his superior that he would drive his own automobile to the job-site for his own benefit and convenience to accomplish a purpose solely his own, that is, to get home more quickly when his work at the field was over. The employer knew that employees sometimes came to the fields in their own cars and he did not object to that practice. Specifically, he knew that Flodeen would use his own automobile to reach the place where his work was to be performed and acquiesced in the use. During Flodeen's journey to the field he had a collision with another car and a passenger in that car was injured.

Is Flodeen's employer liable in such circumstances, under the principle of respondeat superior, for the tort committed by Flodeen?

The controlling principle is that stated in Restatement of the Law, Agency 2d, sec. 228(2), p. 504:

'Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.' Italics ours.

In the instant case Flodeen's affidavit stated:

'* * * that but for the desire on the part of your affiant to eliminate the delay in waiting for the truck to pick him up at the end of his shift, he could have ridden upon said truck to the field; that said truck was available in which to ride; that affiant's use of his own car at said time and place was at his own request and solely for his own convenience and benefit; * * *'

Flodeen's purpose and intention in using his own car is not controverted....