Withers v. Tucker

• Decision Date: 25 June 1965
• Citation: 28 Wis.2d 82,135 N.W.2d 776
• Parties: Edward WITHERS, Jr., Appellant, v. Nealon Harris TUCKER et al., Defendants, Electronic Expeditors, Inc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 776

135 N.W.2d 776

28 Wis.2d 82

Edward WITHERS, Jr., Appellant, v. Nealon Harris TUCKER et al., Defendants Electronic Expeditors, Inc., et al., Respondents.

Supreme Court of Wisconsin.

June 25, 1965.

Rehearing Denied Sept. 7, 1965.

Action by plaintiff Edward Withers, Jr., against defendants Nealon Harris Tucker and wife, Electronic Expeditors, Inc. (hereinafter 'Electronic') and Employers Mutual Liability Insurance Company of Wisconsin (hereinafter 'Employers Mutual'), to recover damages for personal injuries sustained in a motor vehicle collision.

The accident occurred on January 13, 1961, in the city of Milwaukee as a result of an automobile owned and operated by Tucker colliding with the rear of an automobile being driven by plaintiff. Tucker was employed by Electronic as a salesman. Employers Mutual had issued a policy of liability insurance to Electronic which would afford coverage for the accident if Tucker at the time was then within the scope of his employment with Electronic. The pleadings raised an issue as to whether Tucker was then within the scope of his employment and the circuit court ordered a separate and prior trial on the issue of insurance coverage.

Trial was had to the court and a jury. A special verdict was submitted to the jury consisting of one question which read:

'At the time of and just before the collision in question, on January 13, 1961, between the plaintiff's automobile and the Tucker Automobile, was defendant, Nealon Harris Tucker, acting within the scope of his employment by defendant, Electronic Expeditors, Inc., as a salesman thereof?'

The jury returned a 'No' answer to this question with one juror dissenting. Plaintiff served and filed no motion after verdict. Judgment was entered on the verdict July 30, 1964, which dismissed plaintiff's complaint against defendants Electronic and Employers Mutual. Plaintiff has appealed.

Leonard V. Brady, Milwaukee, H. R. George, Milwaukee, of counsel, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Kurt H. Frauen and Thomas N. Klug, Milwaukee, of counsel, for respondents.

No brief for respondents on rehearing.

CURRIE, Chief Justice.

Appellant plaintiff's brief attempts to raise two issues:

(1) Whether the trial court erred in not holding as a matter of law that Tucker was acting within the scope of his employment at the time the accident occurred.

(2) Whether the trial court erred in its instructions to the jury.

In addition to the points raised by plaintiff, the respondent defendants have moved that double costs be imposed against plaintiff for alleged flagrant rule violations.

Whether Plaintiff Was Within Scope of His Employment.

Tucker was employed by Electronic as an outside salesman to call on retail stores in the city of Milwaukee. He would usually commence work between 8 and 8:30 a. m. by either reporting at Electronic's place of business or making his first call on a retailer. His work day ended at about 5 p. m. He drove his own automobile and received no reimbursement for expenses in operating it. However, there was installed in the car a two-way radio owned by Electronic for demonstration purposes. Tucker's compensation consisted of a weekly drawing advance of $100 to be credited against commissions.

On the day of the accident Electronic held a 'grand opening' of its industrial department at its place of business and its retail salesmen, including Tucker, were required to be there to assist with it. Silverman, president of Electronic, testified that during the afternoon Tucker stated he was not feeling well and was going home. This is not disputed by Tucker. Tucker left and shortly thereafter the accident occurred. Silverman further testified that he went to the scene of the accident, that Tucker told him there that he had not been feeling well and was on his way home when the accident occurred and that Tucker made no statement then that he intended to deliver any merchandise that afternoon for Electronic.

Tucker testified that when he left Electronic that afternoon he took with him some needles to deliver to one customer and some tubes to deliver to another and that he was on the way to make these deliveries when the accident occurred. Electronic introduced into evidence its records with respect to these two customers, which records disclosed no transactions with them on the day of the accident and no withdrawal of merchandise from stock by Tucker to make such claimed deliveries.

Thus the evidence was in dispute with respect to the purpose of the trip Tucker was making at the time the accident happened. Under one view of the evidence the sole objective of the trip was to return home because he was not feeling well. Under the other version Tucker was on the way to make deliveries of merchandise for his employer. The jury by its answer 'No' to the question of the verdict accepted the first stated version, and there is ample evidence to sustain its finding. Therefore, there is no merit to appellant's contention that Tucker at the time of the accident was acting within the scope of his employment as a matter of law. Instructions to the jury.

The learned trial court in instructing the jury with respect to the meaning of the phrase 'within the scope of employment' gave portions of Wis. J. I.--Civil, 4035, 4040, and 4045, with inconsequential minor variations such as substituting 'employer and employee' for 'master and servant.' The portion given consisted of the first three paragraphs of 4035, the first paragraph of 4040, and the first two paragraphs of 4045. It is appellant's contention that the instructions given on this issue were incomplete and should at least have included Wis. J. I.--Civil 4000 which defines agency.

Appellant is precluded from raising this issue on appeal for two reasons. First, he failed to request the giving of any additional instructions, and, second, he did not move for a new trial on the ground of error in instructions.

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