Zeidler v. Goelzer

• Decision Date: 07 December 1926
• Citation: 191 Wis. 378,211 N.W. 140
• Parties: ZEIDLER v. GOELZER ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 378

211 N.W. 140

ZEIDLER

v.GOELZER ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1926.

Appeal from Circuit Court, Milwaukee County; S. E. Smalley, Judge.

Action by Hazel Crossett Zeidler against Henry Goelzer and another. From a judgment for plaintiff, defendant Henry Goelzer appeals. Affirmed.--[By Editorial Staff.]J. Elmer Lehr, of Milwaukee (Frank T. Boesel, of Milwaukee, of counsel), for appellant.

Albert H. Riemer and Churchill, Bennett & Churchill, all of Milwaukee, for respondent.

DOERFLER, J.

The action was brought to recover damages for personal injuries. The judgment entered on a former trial came before this court for review on appeal, and the opinion in such case will be found in Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627, where the leading facts involved in the case are quite generally stated, and for brevity's sake no further reference will be made to the same, excepting in so far as it may be necessary to further elucidate the issue involved herein.

The question of the negligence of the defendant Elton Goelzer and of the contributory negligence of the plaintiff were on the first trial properly submitted by the court to the jury, and were uniformly answered in plaintiff's favor, and were approved by this court, and when the cause was remanded for a retrial, under the express language of the opinion it was limited “upon the single issue as to whether or not the trip in question was taken at the request of and for the benefit of the father.” In the opinion also it is said:

“The circumstances under which the trip in question was undertaken do not seem to be clearly indicated in the testimony. In addition to the facts already stated, it appears that Elton, the son, on the evening in question, asked his father's permission to take the car to go skating. The trip was apparently suggested by him and not by the father, although the father knew Elton's plans for the evening and that he intended to take his sisters as well as his and their friends. Upon the evidence as it stands, we do not think it can be said as a matter of law that the trip was undertaken at the request and for the benefit of the father; neither can it be said as a matter of law that the trip was undertaken solely by Elton for his own benefit and to accomplish his own purposes. A jury issue was presented upon this phase of the case. * * * The defendants made a timely request that this issue be submitted to the jury by the special verdict. The refusal of the court to submit the issue was erroneous, and the judgment must be reversed for that reason.”

It is the earnest contention of counsel for the plaintiff that the testimony on the two trials was in all respects identical, and that, if this be so, the jury issue outlined by this court in its former opinion was raised, and was therefore properly submitted by the trial court. To establish the affirmative of the issue, the plaintiff called the defendants Henry Goelzer and his son upon the stand and examined them adversely. In order to reproduce the testimony substantially identical with that of the first trial upon the sole issue involved, plaintiff's counsel adopted the questions on the first trial and interrogated these witnesses accordingly. It became evident in the course of the examination of these witnesses that slight variations appeared in the answers, and, in some instances, apparently owing to the lapse of time, their memories of the facts had become somewhat vague and defective. A proper foundation, however, having been laid, certain material parts of the testimony of these two witnesses, taken upon the former trial and upon another trial which involved the same accident, were introduced.

The evidence introduced upon the second trial in a general way may be summarized as follows: The defendant Henry Goelzer, a married man, engaged in the hardware business in the city of Milwaukee, and having five children, to wit, the defendant Elton, who was the oldest son, and who at the time of the accident was about 17 years of age, two younger brothers, one sister older than himself, and one younger, some considerable time prior to the accident purchased a Hudson automobile for the pleasure, comfort, and convenience of his family. Two members of his family were able to operate the car, viz., himself and the son Elton. The former drove the car on Sundays for the purpose for which it was purchased, and during the week, excepting only on such occasions when the father was not engaged in business, the car was driven by Elton. Upon all occasions, according to the undisputed testimony, whenever Elton drove the car it was with the knowledge and permission of the father. Under such circumstances this car had been used by Elton in going to and from school and in conveying his two sisters to school. He had also, under similar circumstances, operated the car in performing household errands. Likewise, on prior occasions, he had used the car to convey his sisters and friends of members of the family to the park and skating rink. He was concededly an efficient and capable driver. The father expressly testified that he wanted Elton to drive the car for the pleasure, entertainment, and comfort of the family, and that this was the case on the evening when the accident occurred, and that he realized that such operation of the car did not only constitute a service to the family, but also a service to him. Upon the whole, upon a thorough consideration of the testimony on both trials, it is our view that the same in substance is identical.

[1] In the opinion on the former appeal of this case, this court expressly refused to adopt the family purpose doctrine. The decision in that case was further confirmed in subsequent cases, viz., Geffert v. Kayser, 179 Wis. 571, 192 N. W. 26;Hopkins v. Droppers, 184 Wis. 400, 198 N. W. 738, 36 A. L. R. 1156;Papke v. Haerle, 189 Wis. 156, 207 N. W. 261;Calumet Auto Co. v. Diny (Wis.) 208 N. W. 927. In each one of these cases the common law was adhered to that the liability of an owner of an automobile, when operated by any other person, whether he be a stranger or a member of the family, can only be predicated on the principles obtaining in the law of master and servant and of principal and agent; that liability results from the doctrine of respondeat superior; that when an automobile is operated by a member of the family, under circumstances which indicate that it is used solely for the pleasure of the family or for any member or members thereof, liability does not ensue from the mere relationship existing; and that where a machine is taken out solely for the individual pleasure or comfort of a member of the family, even though it be with the consent of the owner, no liability against the owner can ensue. In brief, in order that the owner may be held liable, the operation of the machine must be in furtherance of his business or of his welfare.

The term “business” as thus used is not confined in its meaning to an undertaking conducted for money profit. It may embrace any benefit which may inure to him. While no legal obligation devolves upon the head of a family to furnish a car which affords pleasure and amusement to the members of his family, and while he is under no obligation to delegate or direct any one to operate a car for the benefit of his family, nevertheless, when he directs either a stranger or a member of his family to operate the car under such circumstances that the one so placed in charge may be deemed to perform a service for him, which service without such direction or delegation he would necessarily be obliged to perform himself, then there can be no logic advanced which will lead to the conclusion that a relationship of master and servant or principal and agent is not created, assuming that from such operation the owner receives a benefit. In other words, under such circumstances the owner makes the business of the operation of the car his own business, as much so as though the operator drove the machine in the business conducted by the owner for profit.

As will appear from the facts stated in the former opinion, the trip taken on the night of the accident was not suggested by the father, but was suggested by the son, Elton. Had the father in express language given directions for this trip, or had he requested it for the purpose of affording amusement and entertainment for his daughters, the son would clearly have been constituted the agent, as much so as if such request or direction had been given to a chauffeur in the regular employ of the father.

[2] The issue in this case, in its final analysis, narrows down to this simple proposition: From all the facts and circumstances in the case as disclosed by the evidence, can it be said that the son undertook this trip upon the father's request, and did the suggestion, emanating from the son and indicated to the father, in view of all of the other surrounding facts and circumstances, amount to an implied request on the part of the father to have the machine operated, at the time the trip was undertaken, for the father's benefit? The question being of grave importance, we will undertake, at the risk of repetition, to reiterate the salient points in the evidence.

The car was a pleasure car, purchased by the owner for the comfort, entertainment, and pleasure of the members of his family. The father, as the owner, had exclusive right of direction with respect to the use of this car. While at home on Sundays and on other occasions he drove the car himself. No other member of the family had learned to drive the car, excepting the eldest son, Elton. The car was used almost daily by the son, Elton, with the knowledge and consent of the father, in conveying his two daughters to school. This was clearly a service for the benefit of the father. He used the car in performing family errands, with the consent of the father, and in such service he was performing the work of the father. The...