Pouwels v. Ginsberg , 245 Wis. 45 ( 1944 )

Rosenberry, C. J.

The judgment in this case would be ■affirmed without opinion were it not for a question of agency raised during the course of the trial. The facts necessary to present that question are undisputed and are as follows: The defendant’s brother Joe, who lived in Milwaukee, was visiting him in Green Bay. The defendant was the owner of a 1942 Buick. About noon of March 14, 1942, the defendant and his brother intended to go to Kaap’s restaurant to have luncheon with the defendant’s wifé. Joe asked the defendant for permission to drive the car because he wanted to see how the new 1942 Buick operated. They entered the car, Joe sitting on the left-hand side in the driver’s seat and the defendant on the right-hand side of the front seat. They drove to a place about a block and a half from Kaap’s restaurant when Joe parked the car parallel with the curb. As the car was parked the defendant got out on the right-hand or curb side of the car. Joe opened the door on the'left side of the car and as it swung out it came in contact with Lewellyn, resulting in the injuries complained of.

The trial court made the following statement of facts in its opinion:

“The brother, Joseph, swung open the left front door to step out onto the street. The front door is' a wide one and swings forward. Just as Joseph swung open the door, the plaintiff came along on his bicycle and as the door swung open, he [plaintiff] hit some part of the door and was injured.”

It is apparent from the evidence that Joe had not left his seat in the automobile but was just getting ready to do so.

The defendant contends that when Joe, the driver of the car, drove it to the curb and stopped the car, his agency terminated. It is the contention of the plaintiff that the agency continued at least until Joe had left the car. While it is true that at the time Joe swung the door open, the car was not in motion, he was performing an act necessarily incident to the main purpose of the trip which was to take luncheon with defendant’s wife. The trip was not taken to enable Joe to find out how the 1942 Buick worked, — that was purely incidental. The opening and shutting of the doors of an automobile are part of its operation, just as much as turning the ignition key, shifting gears, or pushing the starter. Certainly Joe could not accompany his brother or drive the car without entering it. He could not go to luncheon without leaving it. Many people consider the manner in which the doors of a car operate to be a matter of considerable importance. In any event, having been given permission to operate the car on the trip and for that purpose to enter it, his preparation to leave the car to go to their destination was necessarily incident to the main purpose. There can be no doubt he had the defendant’s consent to enter the car, to operate it, and to leave -it.

Restatement, 1 Agency, defines “agency” as follows :

“Sec. 1 (1) Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. ...”

The car in this instance was in control of the defendant in that he determined when and where the car should be driven. It is undisputed that Joe was the agent of his brother while the car was being driven. The question for decision is, When did that agency terminate ?

Restatement, 1 Agency, sec. 35, is as follows :

“Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.”

It is considered that the entire operation commencing with Joe and defendant's leaving' defendant’s place of business, Joe’s entrance into the car, his operation of it, his parking of the car at the curb, his opening of the door preparatory to leaving the car to go to luncheon, was all a part of one transaction.

The jury found that the opening of the door under the circumstances was a negligent act. In disposing of motions after judgment the court correctly held:

“The trip was'tnade for the defendant’s purpose to transport defendant and brother to have dinner downtown with defendant’s wife. The trip was made for the purpose and business of the defendant. The defendant was no guest of the brother, the driver. The original business and purpose of the trip remained that of the defendant even if he did permit his brother to handle the wheel to see how it drove. The trip was not taken for the purpose of the guest brother to find out how the car drove. At all times the car was on defendant’s purpose and business.”

By the Court. — Judgment affirmed.