198 Wis. 315 | Wis. | 1929
The defendant Carl McKeith is the proprietor of a garage at Galesville,' Wisconsin. On and prior to October 9, 1927, one Russell Jenks was a mechanic in his employ. ' On Sunday, October 9, 1927, he took a.second-hand car belonging to McKeith and, with his wife,‘drove to La Crosse. Upon his return; while driving through the city of Onalaska, after dark, about 7:15 o’clock in the evening, his car struck the plaintiff, causing personal injuries.
The principal issue litigated upon the trial was whether Jenks was acting as the agent of McKeith. The court was of the opinion that the evidence did not establish such agency and directed a verdict for the defendant. Upon a consideration of the motion for a new trial, however, the court came to a different conclusion and, for that reason, entered an order granting a new trial. The appeal is from that order, and the question we have to consider is whether the record presents evidence which would have supported a verdict in plaintiff’s favor.
There is no question but that Jenks was driving a car belonging to McKeith. This alone made a prima facie case for the plaintiff and placed upon the defendant the burden of proving'the contrary. Enea v. Pfister, 180 Wis. 329, 192
The defendant McKeith testified that the car used by Jenks on the trip in question was a car which he had taken in on a trade; that it was not used for garage purposes, and that, on the Sunday in question, he had permitted Jenks to use the car for his own purposes; that he did not send Jenks to La Crosse to get repair parts for the Willys Knight car, and that Jenks did not go to La Crosse pursuant to McKeith’s direction or for McKeith’s purposes.
Stanley Gordon, the attorney who tried the case, took the stand and testified that sometime before the commencement of the action he called at McKeith’s garage and asked for Russell Jenks. He was directed down-stairs. McKeith followed him down and was present while he had a conversation with Jenks, in which he asked Jenks what he was doing
The admissibility of Gordon’s testimony concerning what Jenks told him at the garage is challenged because, it is said, the fact of agency cannot be established by declarations of the agent made out of court. It is true that the fact of agency cannot thus be established (Somers v. Germania Nat. Bank, 152 Wis. 210, 138 N. W. 713, and cases there cited), but this evidence was admissible because the declarations of Jenks were made in the presence of McKeith, who remained silent and interposed no denial to the truth of such declarations. Under such circumstances the statements made by Jenks were admissible in evidence. While it has been held that such declarations are in and of themselves sufficient to establish the fact (Kimball v. Post, 44 Wis. 471), it is generally held that they are not only insufficient for that purpose but barely qualify as evidence at all for any purpose unless, by such silence, the adverse party was induced to change his position to his detriment, in which case estoppel may arise. (As to the latter proposition, see Moller v. J. L. Gates Land Co. 119 Wis. 548, 97 N. W. 174). With reference
While the trial court did not pass upon the question of whether the plaintiff was guilty of contributory negligence as a matter of law, it is urged here that the motion for a new trial should have been denied on that ground. We have carefully examined the record bearing upon the contributory negligence of the plaintiff and we hold that under the evidence that is also a jury question.
The appellants severely criticise Mr. Gordon for acting as a witness while he was the active attorney in the trial of the case, under the doctrine of Roys v. First Nat. Bank, 183 Wis. 10, 197 N. W. 237, and other cases of like tenor. Mr. Gordon justifies his conduct by claiming that his testimony was essential to the ends of justice, that he entered
By the Court. — Order affirmed.