Buchholz v. Breitbach

| Wis. | Jun 20, 1927

The following opinion was filed April 5, 1927:

Doerfler, J.

The special verdict returned by the jury, if supported by any credible evidence, fastens liability upon both defendants. Under the answer of the jury to the first question of the special verdict, the license plates on the car of the defendant Kastner at the time of the accident were used by Kastner with the knowledge and consent of the defendant Breitbach, and there is credible evidence in the case to sustain this finding. It must also be conceded that in consenting to the use of these license plates by the defendant Kastner, the defendant Breitbach violated the provisions of the statute. Under these circumstances, plaintiff’s counsel argue that a presumption or inference is raised that at the time of the accident Kastner was operating the automobile as an employee of the defendant Breitbach and within the scope of his employment.

In the case of Enea v. Pfister, 180 Wis. 329" court="Wis." date_filed="1923-04-03" href="https://app.midpage.ai/document/enea-v-pfister-8194021?utm_source=webapp" opinion_id="8194021">180 Wis. 329, 192 N. W. 1018, it was held that where a person is injured by an automobile owned by the defendant but driven by another, “proof of ownership makes out a prima facie case, as it raises an inference or justifies a presumption that the driver was the servant of the owner, driving the car in pursuit of the owner’s business and within the scope of his employment.”

Such presumption or inference is not conclusive, and where it is fully overcome by the evidence in the case there is no jury issue, but such issue becomes one of law, to be determined by the court. It is said in the opinion in the Pfister Case:

“While the evidence on the part of a defendant may be so clear and convincing as to overcome the probative force of the inference justified by the fact of ownership, the evidence on behalf of the defendant in this case is not of that order and the finding should not have been disturbed by the trial court.”

A reading of the Pfister Case is persuasive that the proof offered by the defendant was weak and unsatisfactory, and under those circumstances this court held that the inference had not been overcome, but that the evidence properly raised a jury issue. See, also, Johnson v. Ætna Life Ins. Co, 158 Wis. 56" court="Wis." date_filed="1914-10-06" href="https://app.midpage.ai/document/johnson-v-ætna-life-insurance-8191438?utm_source=webapp" opinion_id="8191438">158 Wis. 56, 147 N. W. 32, and numerous cases cited in 42 A. L. R. 905.

It is further argued by plaintiff’s counsel that inasmuch as the defendant Breitbach permitted Kastner to use the license plates under such circumstances as amounted to a violation of the statute above referred to, he should not be permitted to assert that the relationship between him and Kastner was other than that of employer and employee and that Kastner was not acting within the scope of his employment. This may be the law in some jurisdictions, but it is clearly not so in Wisconsin. In Derr v. C., M. & St. P. R. Co. 163 Wis. 234" court="Wis." date_filed="1916-05-02" href="https://app.midpage.ai/document/derr-v-chicago-milwaukee--st-paul-railway-co-8192060?utm_source=webapp" opinion_id="8192060">163 Wis. 234, 157 N. W. 753, it was held:

“The fact that an automobile which was struck by a train had not been registered for the current year and was being driven in violation of sec. 1636 — 47, Stats., does not pre-elude a recovery for the injuries to the car and the driver, such violation of the law having no causal relation to the accident.” (Syllabus, par. 2.) See, also, numerous cases cited in 16 A. L. R. p. 1117, note 3.

We now come to the consideration' of the question whether at the time of the accident the relationship of employer and employee existed between the two defendants, or whether the defendant Kastner was an independent contractor. On the 31st day of July, 1923, the account upon the books of the defendant Breitbach with Kastner was closed. Kastner evidently had overdrawn his account, and in order to balance the same a voluntary credit was entered upon the books at that time. Kastner thereafter engaged in truck farming, but on rare occasions, when time permitted, he endeavored to effect sales of automobiles. He owned his own car, and used it in drumming up and exploiting prospects. In the course of his efforts he' learned that Miller was in the market for a car and desired to effect an exchange. On the 26th of October, 1923, he drove Miller to the Breitbach garage at West Allis, and at that time Miller became interested in a certain Hudson car in the garage which was then in process of being repaired. Both Kastner and Miller waited at the garage for about two hours for Breitbach to appear, in order that terms might be agreed upon for the proposed exchange. Breitbach did not put in an appearance, and Kastner thereupon drove Miller .to the latter’s home, then proceeded to his own home, and thereafter, evidently while driving over to the West Allis garage of the defendant Breitbach, had the accident herein complained of.

The record is devoid of any evidence indicating that Breit-bach either exercised any control over the activities or movements of Kastner, or that he directed him at any time with respect to the details of his work, or that he had authority so to do. On the contrary, the bold fact is outstanding that Kastner pursued his operations entirely in accordance with his own volition, and that he drove when he pleased and where he pleased, to suit his own purpose, in a car owned by himself.

The distinction between the ordinary relationship of employer and employee where the rule of respondeat superior obtains, and that of an independent contractor, has been repeatedly defined by this court, and nowhere is the distinction more clearly made manifest than in the recent case of James v. Tobin-Sutton Co. 182 Wis. 36, 195 N. W. 848. The facts in the James Case are very similar to those involved in the instant case. In that case this court approves of the following language, taken from a note in 19 A. L. R. pages 226 to 276: “An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed.”

Applying this definition of an independent contractor, we are constrained to hold that the evidence in this case clearly establishes the fact that Kastner at the time of the accident was an independent contractor; that he was not subject to any directions as to the details of his work by the defendant Breitbach; and that the lower court properly dismissed the action against the latter.

At the close of the evidence a motion was made by counsel for Breitbach for the direction of a verdict in his favor. This clearly raised the issue as to whether or not there was any credible evidence in the case to sustain plaintiff’s contention that the relationship between Breitbach and Kastner was that of employer and employee. The special verdict submitted on this subject clearly submitted to the jury the issues of whether such relationship existed and whether the defendant Kastner at thé time of the accident was operating his automobile within the scope of his employment. The learned trial court in his opinion took the position that he did not submit to the jury the question of whether or not Kastner was an independent contractor and whether he was subject to any detailed directions on the part of Breitbach. Viewing the first three questions of the special verdict, we are convinced that the lower court was mistaken in its view, and that judgment could not properly have been ordered in favor of the defendant Breitbach, notwithstanding the verdict. However, the evidence discloses that Kastner as a matter of law was an independent contractor, and that therefore the motion of counsel for the defendant Breitbach for a direction of the verdict should have been granted.

By the Court. — The judgment of the lower court is affirmed.

The appellant moved for a rehearing.

In support of the motion there was a brief by Walter Schinz, Jr., and Glicksman & Gold, attorneys, and Robert Wild, of counsel, all of Milwaukee.

In opposition thereto there was a brief by Shaw, Muskat & Sullivan of Milwaukee.

The motion was denied, with $25 costs, on June 20, 1927.