Hensel v. Hensel Yellow Cab Co. , 209 Wis. 489 ( 1932 )

Rosenberry, C. J.

The first contention made by the defendant is that there is no evidence to justify the jury’s finding of negligence with respect to lookout, management, and control. In its instructions to the jury the court made no reference to the fact that the plaintiff was a guest either of her husband or of the company. The instructions given in regard to the first question of the special verdict relate to ordinary negligence and are in no way qualified. The defendant requested no instructions upon these points, and it is apparent from the record counsel considered and so informed the court that the contributory negligence of the plaintiff and assumption of risk by her were matters of law for the court. This is not a satisfactory way to dispose of questions of this kind when properly raised upon the trial.

Since Cleary v. Eckart (1926), 191 Wis. 114, 210 N. W. 267, this court has repeatedly emphasized the fact that the duty of a host to his guest is materially different than the duty of one to a third person. It is well established that a guest must accept the premises of his host as he finds them, it being the duty of the host to warn the guest of lurking dangers, so a guest accepts the automobile of his host as it is unless there are defects known to the host not observable by the guest in the éxercise of ordinary care; in other words, unless there are lurking dangers. O’Shea v. Lavoy (1921), 175 Wis. 456, 185 N. W. 525.

In Cleary v. Eckart, supra, it was held that the fundamental relation existing between host and guest is that of licensor and licensee and that the duty which the host owes to his guest is that of a licensor to a licensee.

In Poneitowcki v. Harres, 200 Wis. 504, 228 N. W. 126, the situation was very similar to that disclosed by the record in this case. The court there said:

“But even though the verdict was not so framed as to attract the attention of the jury to the qualified care which the relations obtaining imposed upon the appellant (host), it may or may not constitute prejudicial error as submitted to the jury. They were asked to find whether the appellant failed to exercise ordinary care under the circumstances, ánd no distinction was made between the degree of care which he (host) owed to the respondent (guest) and to all the world, and especially other users of the highway. However, if there be no difference in the instant case, in the duty which the appellant owed to the respondent and the duty which he owed to other users of the highway, then the form of the verdict should not be deemed prejudicial error.

“While the guest cannot demand of the host a higher degree of skill and experience than he actually possesses, in the management and control of the automobile under special and peculiar circumstances, even though they do not amount to emergencies, nevertheless there are certain duties imposed upon the drivers of automobiles, the abilities to perform which do not depend upon experience or acquired skill. Among these is the duty to maintain a reasonable speed, obey the law of the road, keep a proper lookout, etc. There are duties which are required to be observed for the safety of every one — those within as well as those without the automobile, — and failure to perform them may result in liability in the absence of acquiescence or contributory negligence on the part of the guest. The driver of an automobile who maintains an excessive or reckless speed, who fails to maintain a lookout or to observe the laws of the road, plainly increases the dangers which the guest assumed upon entering the automobile and adds new ones, and there manifestly is no difference between the degree of care he is required to use in these respects for the safety of his guests and for the safety of other persons.”

In that case it was held that the evidence being sufficient to sustain the findings with respect to excessive speed and the failure to. maintain a proper lookout, the verdict sustained the judgment.

In this case if we assume that the failure of Fred Hensel properly to control and manage the truck was due to a lack of skill on his part and not to inadvertence and that that was a hazard assumed by the plaintiff (see Harter v. Dickman, ante, p. 283, 245 N. W. 157), there still remains the finding that he was negligent with respect to lookout, as to which he owed the plaintiff the same duty as he owed others, in the absence of evidence that he was habitually negligent as to lookout to the knowledge of the plaintiff and in the absence of any conduct on her part inducing or acquiescing in his conduct as to lookout at the immediate time. This, brings us to the question of whether or not there is credible evidence which sustains the jury’s finding of failure to exercise ordinary care in that respect. There is very little dispute upon the facts. Differences arise, however, with respect to the inferences which may properly be drawn from those facts. Under the well established rule, if the minds of reasonable men may come to different conclusions with respect to these inferences the question is for the jury. What Fred Hensel saw when he reached the top of the hill in question is disclosed in two ways: (1st) by what he said he saw, and (2d) by what he did: He testified:

“When I got to the top of the hill where the accident happened there was a slight rise in that. I shifted at first. Just before I shifted I naturally had to slow up the truck. I got her down to between eight and ten miles an hour. I shifted from the fourth to the third. After we came down that small rise, then that big one loomed up; of course, it was all part of that hill but I didn’t see it from the first part. I tried to shift further then, when I saw the big incline. I don’t know if I succeeded in making that shift, I was so unstrung. . . . Immediately after going over the rise I saw that the hill was so steep that Fwould have to shift as low as possible and that is what I attempted to do, and how far down I really don’t know. . . . It is a fact that when I was going down I saw this first grade, and then the second grade was a good deal steeper than the first grade. I didn’t realize that at first. I realized that as I came up above the rise.”

It is evident that what Hensel meant by small rise was a hump in the hill.

It appears from his testimony that on several other occasions he had negotiated hills by shifting to third, second, or even first speed, and had safely descended other hills in that ■ way on this trip. It appears without dispute that at the point where the truck overturned there was a sharp curve in the road. The testimony is not clear as to whether or not the turn might have been observed from the top of the hill. There is no evidence that Hensel observed it at any time prior to the time when the truck became unmanageable. According to the testimony of one Wilsnack, who drove the other Hensel truck which preceded the one driven by Fred Hensel, the hill was about four blocks long, the turn abbut midway, and the hill is steep both above and below the point of the accident.

The accident may have been caused by one of three things : (1st) the failure of Hensel to make a reasonably careful and accurate observation (maintain a proper lookout) ; (2d) carelessness or inadvertence on his part in forming a conclusion as to what should be done under the circumstances; and (3d) that the driver Hensel was not possessed of sufficient skill and judgment to meet the situation and that the accident was due to a want of skill on his part. There is nothing to indicate that the driver Hensel did not exercise such skill as he possessed in the management of the truck. He had every inducement to do so. His own safety as well as that of his wife and employee were at stake as well as the property of the company. It is quite clear that had he in the first instance realized the steepness of the hill and the fact that there was a turn midway in the hill, he would in all probability have shifted to second or first speed instead of to third. It appears that he is a driver of thirteen or fourteen years’ experience in the management and control of trucks on strange highways.

It is considered that the circumstances are such that a jury might reasonably find from the evidence that the failure of the driver Hensel to meet the situation was due to his failure to make a reasonably careful and accurate observation; in other words, to maintain a proper lookout. In this case as in Poneitowcki v. Harres, supra, Hensel owed the same duty to the plaintiff in respect to lookout, in the absence of evidence of the nature above noted, that he owed to any third person, and his failure to use ordinary care in the performance of that duty constituted negligence for which the defendant is liable. The failure of the court to instruct the jury with reference to the host-guest relationship was not prejudicial error for the reason stated in Poneitowcki v. Harres, supra. The failure of the driver Hensel to maintain a proper lookout increased the danger and added a new hazard neither of which was assumed by the plaintiff.

It is next contended that the defendant corporation is not liable because it was not within its corporate power to engage in the business of the gratuitous carriage of persons. It is argued that the act of carriage being ultra vires, the defendant should not be held liable for the negligent acts of its servants. The cases of Seidl v. Knop, 174 Wis. 397, 182 N. W. 980, and Miller v. Frank I. Epstein Co. 185 Wis. 112, 200 N. W. 645, were cited in support of this contention. In these cases the master was held not liable because at the time of the injury complained of the servant was not engaged in the master’s business. Here at the time the injuries complained of occurred the servant was admittedly engaged in the master’s business. Hensel had not departed from the ordinary and customary route of travel between Sheboygan and Philadelphia for the- purpose of performing some act outside of or beyond the scope of his employment, but while performing an act clearly within the scope of his employment he performed it so negligently as to cause the plaintiff injury. The doctrine of ultra vires is not one to be set up by a corporation as a shield against liability for corporate acts, but it is a weapon to be used by the state to keep private corporations within their legitimate spheres and to punish them for violation of their corporate charters.

As was said by a learned writer:

“Corporations are responsible for the wrongs committed or authorized by them, under substantially the same rules which govern the responsibility of natural persons. It was formerly supposed that those torts which involved the element of evil intent, such as batteries, libels, and the like, could not be committed by corporations, inasmuch as the state, in granting rights for lawful purposes, had conferred no power to commit unlawful acts; and such torts, committed by corporate agents, must consequently be ultra vires, and the individual wrongs of the .agents themselves. But this idea no longer obtains. . . . But many torts are unintentional, and arise through neglect of agents and servants, while others, though intentional, are committed by agents or servants in the supposed interest of their employers, and under circumstances which may justify them in believing that what they do is fairly authorized, and a part of their duty under their employment. To deny redress against the corporation would in many cases be a denial of all remedy. The rule is now well settled that, while keeping within the apparent scope of corporate powers, corporations have a general capacity to render themselves liable for torts, except for those where the tort consists in the breach of some duty which from its nature could not be imposed upon or discharged by a corporation.” 1 Cooley, Torts (4th ed.) § 70 and cases cited. See, also, 7 Thompson, Corporations (3d ed.) p. 306, § 5415.

It was clearly within the power of the corporation to create as between itself- and the plaintiff the relationship of licensor and licensee. Even if it were not, the corporation could not set up the doctrine of ultra vires to escape liability under the circumstances of this case. Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 79 N. W. 229.

But it is said that the acts of Fred Hensel, president of the company, and Arthur Hensel, the vice-president of the‘ company, were ineffectual to create the relationship of host and guest between the plaintiff and defendant because Hensel as driver of the truck was acting beyond the scope of his real or apparent authority in inviting or permitting the plaintiff to ride upon the truck. The determination of this question requires us to examine the nature of the relationship of licensor and licensee. There runs through the brief of counsel the idea that there is something of a contractual nature inherent in the relationship of licensor and licensee. That the relation may be created by contract there can be no doubt. The law of licensor and licensee as applied to automotive vehicles is derived from the law of real property. The one essential of a license is that it be assented to by the licensor and this assent may be evidenced by conduct as well as by writings. It has been held from the earliest times in this state that where persons habitually traverse the right of way of railway companies to the knowledge of the company that any person so traveling upon the right of way is a licensee although he may be there in violation of a statute and without the express consent of the defendant company. Davis v. Chicago & N. W. R. Co. 58 Wis. 646, 17 N. W. 406.

Where a person is upon the property of another with the other’s knowledge, that is sufficient to establish the relationship. In Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800, the court said:

“In the present case it appears without dispute that the plaintiff went upon the premises for the transaction of private business of his own with the defendants’ employees, in which the defendants themselves had no interest, and up to the time, at least, when the defendant Jenner (an employee of the defendant), as alleged and found, directed him to use the west elevator, he was a mere licensee; and the simple question presented is whether that direction constituted an invitation, either express or implied.”

In order to establish the relationship of licensor and licensee between the defendant company and the plaintiff it is not necessary to show that the officers of the company had authority to extend an invitation to the plaintiff. If they had such authority and the invitation had been extended and accepted, the relationship would have been that of invitor and invitee, which imposes upon the invitor a higher duty to exercise care for the safety of the invitee than the law requires of a licensor to exercise as to a licensee. Muench v. Heinemann, supra. We may therefore put to one side any consideration with respect to the scope of the authority of Fred Hensel or Arthur Hensel and we need consider only whether or not the plaintiff was upon the truck with the knowledge and acquiescence of the company. If she was, she was a licensee and the defendant company owed to her the duty owing by a licensor to a licensee. We are not required to find any contractual element in the relationship nor to find any authority, express or implied, to extend an invitation. We only need to find that the company had knowledge of her presence upon the truck and acquiesced therein.

At all times while upon the trip Fred Hensel was engaged in the business of the company. Whatever knowledge he gained or should have gained in the course of the transaction of the company’s business was knowledge of the company. If a detour sign in the highway had come to his notice, the company would have had knowledge of that sign; so of any other fact relevant or material to the company’s business. It is difficult to argue a proposition which seems so manifest as that the company had notice of the presence of the plaintiff upon the truck when she sat on the seat beside the president of the company and was handed a pillow for use on the trip by the vice-president of the company. Can there be any doubt that if a person had climbed upon the truck without invitation while it was upon its way and his presence was known to the’ driver, Hensel, that thereafter the legal relation of the company and the rider would have been affected ? See 20 Ruling Case Law, p. 83, § 73 and cases cited. If so, how can it be said that the relation between the company and the plaintiff, who was upon the truck with the full knowledge and acquiescence of its managing officers, was not affected and that the acquiescence of the officers in her presence upon the truck was not in fact the acquiescence of the corporation. It is not necessary to point out that the corporation can act only through its officers and agents. Conceding that plaintiff was there for purposes of her own, that she was on a pleasure trip at the invitation of her husband, that her presence there did not further-the business of the company, nevertheless the company had full knowledge of her presence, and under all of the authorities under such circumstances the defe'ndant company owed to her the duty that a licensor owes to a licensee. See note 14 A. L. R. 145 and cases cited. Even if the plaintiff was a trespasser, the defendant owed her the duty of refraining from “active” negligence. Brinilson v. Chicago & N. W. R. Co. 144 Wis. 614, 129 N. W. 664. See 49 A. L. R. 783 and cases cited. The defendant owed to the plaintiff the duty to not increase the danger nor to add a new hazard while she was upon the truck with the knowledge and. acquiescence of defendant’s principal officers.

It is next urged that in the state of Ohio, in which jurisdiction this cause of action arose and by the laws of which it must be governed, a wife may not sue her husband for a tort committed upon her by him. Leonardi v. Leonardi, 21 Ohio App. 110, 153 N. E. 93. Counsel agree that Avhether or not a married woman may nevertheless sue her husband’s employer for injuries sustained by reason of her husband’s negligence, has never been decided in the state of Ohio.

In other jurisdictions there are five cases involving the question of whether a wife may sue her husband’s employer under the circumstances disclosed by the facts of this case. Three cases—Maine v. James Maine & Sons Co. 198 Iowa, 1278, 201 N. W. 20; Riser v. Riser, 240 Mich. 402, 215 N. W. 290; and Emerson v. Western Seed & Irr. Co. 116 Neb. 180, 216 N. W. 297-hold that she may not maintain such an action. To the contrary are the following cases: Schubert v. August Schubert Wagon Co. 249 N. Y. 253, 164 N. E. 42, and Poulin v. Graham, 102 Vt. 307, 147 Atl. 698.

In Chase v. New Haven Waste Material Corp. 111 Conn. 377, 150 Atl. 107, 68 A. L. R. 1497, it was held that an employer was liable to an unemancipated minor child of an employee for an injury due to the employee’s negligence while acting in the service of the employer, notwithstanding that the child could not maintain an action against the parent for the tortious act.

In Wisconsin a wife may by reason of the provisions of the statute maintain an action against her husband for damages due to his wrongful act. Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 210 N. W. 822. On the other hand, a child may not maintain an action against its parent under like circumstances. Wick v. Wick, 192 Wis. 260, 212 N. W. 787.

The theory of the cases in the states- where recovery is denied under such circumstances rests upon the proposition that a master’s liability is derivative, that is, based upon the servant’s liability. Maine v. James Maine & Sons Co., supra. As pointed out in Schubert v. August Schubert Wagon Co., supra, the wrongful act of the husband toward his wife does not cease to be wrongful merely because the wife may not recover damages. The court said:

“Others may not hide behind the skirts of his immunity.- . . . The employer must answer for the damage, whether there is trespass by direct command, or trespass incidental to the business committed to the servant’s keeping. In each case the maxim governs that he who acts through another acts by himself.”

In Chase v. New Haven Waste Material Corp., supra, the court said:

“Public policy may exempt the husband or parent from an action by the wife or child directly against him for his negligent act. There is no rule of law and no public policy which would exempt the employer, The two actions are totally dissimilar, as we have earlier stated. The argument rests upon the fallacious assumption that since the employer has an action over against his employee, it will merely result in the employee paying back to him the recovery from the employer, less the expenses of the litigation. The recovery for the wrong done the wife or child by the employer does not belong to the husband or father, but to the wife or child. The recovery by the employer from his employee will diminish his own property; it will not in the eye of the law diminish the property belonging to his wife or child. The assumption is also fallacious in that it assumes there will be an actual recovery in fact against the employee. ... We find no difference in principle, in cases of the kind we are considering, between the action by the wife, who is permitted by statute to sue in tort her husband, and the action by the unemancipated child who is denied the right to sue his parent for his tortious act.”

It is considered that when the supreme court of the state of Ohio is called upon to decide this question it will, in accordance with what appears to us to be the sounder reasoning, declare the law to be that the employer is liable under the circumstances of this case.

By the Court. — Judgment affirmed.