211 Wis. 391 | Wis. | 1933
The following opinion was filed March 7, 1933 :
The state’s cause of action is unembarrassed by any consideration of the liability of one defendant to another arising out of this transaction and because of their contractual relation to each other. All who in a legal sense participated in causing the damage to the bridge are liable to the state. This liability to respond in damages arises out of the obligations fixed by sec. 87.07, Stats., upon those using the bridge for transporting loads in excess of fifteen tons. Voigt v. Milwaukee County, 158 Wis. 666, 149 N. W. 392. This statute sets forth a policy of this state to construct bridges capable of sustaining moving loads of at least fifteen tons weight. It provides specifically that any person who shall subject any bridge to a greater load shall be liable for damages resulting therefrom. The exact words are:
“Any person who shall subject any bridge or culvert to a load of over fifteen tons shall be liable for double the amount of damages that may be caused thereby, but such person shall not recover for any injury to himself or to the property in his keeping.”
This leaves no room for argument over the creation of a liability absolute in its nature. In protection of the interests of the state, the various governmental units, and in an
Some confusion as to the consequences following a failure to procure a permit arises because of the emphasis, in the trial in the circuit court, placed upon the failure to have in hand a written permit to cross the bridge with the particular load here involved. Considerable time seems to have been devoted to an effort to show that the respondent Pior-ier had no knowledge that the highway commissioner of Columbia county had not prepared the permit asked for. The importance of securing a permit for such operations is not to be minimized. The directions and precautions that may be incorporated in a permitmay save all interested much trouble and expense, if followed. But for reasons appearing in the facts of this case the failure to have the permit issued in due form is not a controlling factor. Piorier and Ahrens expected delivery of the permit until just before reaching the bridge and both continued under the impres
The questions arising between the respondents and appellants relate to the right of one to recover over against the other. The propositions must yield to the rules growing out of the relation of principal and agent. It is sufficiently established that the business which required the taking of the excessive load over this bridge was the business of the appellant Yellow Baggage and Transfer Company. This concern organized the expedition and to all who were assisting in the enterprise it stood in the position of principal. While the trial court made no specific findings upon this phase of the case, the only reasonable inference to be drawn from the evidence is that the relationship of employee and employer existed between those who were actually engaged in moving this load and the appellant Yellow Baggage and Transfer Company. It was the Yellow Baggage and Transfer Company who petitioned for the permit, that used the highway for its profit, and it is the one who would naturally have
Is Ahrens within the protection of the rule just stated? He was regularly employed by the Yellow Baggage and Transfer Company and by it placed in charge of the trip, as found by the trial court. The duties imposed by this relation were diligently and in a reasonably skilful way performed by him. No evidence of a violation of duty was offered and none claimed except as to the failure to secure a written permit to take this load over the bridge, but, as has been said, the failure to secure the permit does not affect the point controlling here and may be left aside as immaterial. There was a substantial compliance with the employer’s instructions and no liability on Ahrens’ part' under the evidence exists to hold harmless the employer for damages resulting from the carrying out of the business.
By the Court. — Judgment reversed as to appellant Ahrens, and cause remanded with directions to dismiss the cross-complaint of the Yellow Baggage and Transfer Company against him. As to respondents the judgment is affirmed.
A motion for a rehearing was denied, with $25 costs, on May 9, 1933.