229 Wis. 75 | Wis. | 1938
The defendant contends that at the time of1 the collision Roy Sladkey, the driver of the defendant’s automobile, was not the agent of the defendant, but was the
It is the law of this state that “proof of the ownership of a car makes out a prima facie case [of agency], on the theory that this fact justifies an inference or raises a presumption that he who was driving-the car was the agent or servant of the owner and that he was driving it in pursuit of the owner’s business and within the scope of his .employment.” Enea v. Pfister, 180 Wis. 329, 332, 192 N. W. 1018; Edwards v. Kohn, 207 Wis. 381, 241 N. W. 331; Zurn v. Whatley, 213 Wis. 365, 251 N. W. 435. Of course that presumption is rebuttable and must yield to undisputed credible evidence to the contrary. Zurn v. Whatley, supra. Although the de
The defendant’s attorney earnestly contends that this case is ruled in defendant’s favor by Novak v. Zastrow, 200 Wis. 394, 228 N. W. 473, in which it was held by a divided court that a wife, in driving her husband’s automobile to and from Madison, for the purpose of bringing her mother back to her home in Monroe to visit, was, as a matter of law, not acting at the time as her husband’s agent. The holding, under the facts of that case, does not conflict with the holding here and clearly does not control the present decision. In the Novak Case, it was also contended that the agency of the wife was established by her mother’s testimony. She testified that after arriving in Madison she spent some time there and “we did some shopping.” However, in that case, it did not appear whether the shopping was done foi; the mother, the daughter, or the defendant’s family, and the testimony was therefore not considered controlling.
The question of Sladkey’s agency might properly have been submitted to the jury. No request, apparently, for such submission was made. In that situation, the question of the agency of Sladkey must be deemed to have been determined by the trial court in conformity with its judgment,
The finding of the trial court that Sladkey, at the time of the collision, was the agent of the defendant is, in our opinion, a reasonable one, and the defendant’s attack upon it is therefore without merit.
By the Court. — Judgment affirmed.