Opinion
November 2, 1965. —
November 30, 1965.
APPEAL from a judgment of the circuit court for Milwaukee county: LEO B. HANLEY, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by J. Jerome Finn of Milwaukee.
For the respondent there was a brief by Suel O. Arnold, attorney, and James P. O'Neill of counsel, both of Milwaukee, and oral argument by Mr. O'Neill.
The defendant was arrested on September 12, 1964, at approximately 1:15 a.m. in the village of Bayside, Wisconsin, and charged with driving a motor vehicle without an operator's license in violation of village ordinance No. 46, which is identical to sec. 343.44 (1), Stats.
At the time of his arrest, the defendant produced a valid chauffeur's license, his regular operator's license having previously been revoked. Mr. Berthiaume contends that he did not violate the ordinance because he was operating his automobile "as a chauffeur."
Mr. Berthiaume lives in Port Washington and maintains a company office at his home. His employment requires frequent travel out of state, and he is reimbursed for mileage expenses from the time he leaves his house until he returns.
The week preceding his arrest the defendant left his home in Port Washington and drove his car to Anne's Tavern, located at Thirty-fifth street and Villard avenue in Milwaukee. He parked his car at the tavern and took a taxi to the Milwaukee county airport, where he boarded an airplane to embark on his week of sales work.
At the end of the week, the defendant flew to Chicago because flight connections to Milwaukee were doubtful. At Chicago, he rented a car and drove directly to Anne's Tavern, arriving there at approximately 7:30 p.m. He transferred some equipment from his car to the rented car for use in the course of his business the following week.
Mr. Berthiaume testified that, because he was personally acquainted with the operators of the tavern, he stopped in their living quarters on the premises to visit them, drink some beer, and fill out reports required by his company. Between 12 and 12:30 a.m., the defendant stated that he left the tavern, mailed his reports, and proceeded toward Port Washington on Highway 141. While passing through Bayside, he pulled off the road into a closed service station to use its rest-room facilities and to take a nap. He was observed by the village of Bayside police and asked to produce his driver's license, and, upon failing to do so, he was arrested.
The trial court found that the defendant was not operating the automobile as a chauffeur at the time of his arrest. It held the defendant guilty of violating village of Bayside ordinance No. 46 and imposed a fine of $100.
The question before us is whether upon the instant facts the defendant was using his chauffeur's license in the scope of his employment. The trier of the facts held that Mr. Berthiaume was not driving in pursuit of his employer's business. We cannot reverse this judgment unless such finding is against the great weight and clear preponderance of the evidence. Milwaukee v. Thompson (1964), 24 Wis.2d 621, 130 N.W.2d 241; Weber v. Kole (1959), 7 Wis.2d 107, 95 N.W.2d 784.
It is conceded that the ordinance in question is identical to sec. 343.44 (1), Stats., which provides in part as follows:
"No person whose regular license has been duly revoked or suspended pursuant to the laws of this state, but whose chauffeur's license is still valid, shall operate a motor vehicle upon any highway in this state other than as a chauffeur before he has obtained a new license or has had his license reinstated under the laws of this state."
Whether Mr. Berthiaume's use of his chauffeur's license was proper depends on the application of the facts of this case to sec. 343.05 (1), Stats., which provides in part as follows:
". . . no person shall operate a motor vehicle upon a highway in this state unless such person has a license issued to him by the department, which license is not revoked, suspended, canceled or expired. A valid chauffeur's license satisfies the requirements of this section only when the licensee is operating a vehicle in the performance of his duties as chauffeur."
The defendant spent approximately five hours at Anne's. Tavern upon his return from Chicago to Milwaukee. While he testified that he transferred some equipment from his own private car to the rental car at the tavern and also filled out some reports at the tavern, we are unable to conclude that the trial court's ruling was unwarranted. This is true notwithstanding the fact that Mr. Berthiaume's employer reimbursed him for his travel expenses to his home.
The fact that Mr. Berthiaume remained an employee until he arrived at his home may have been a significant factor in determining whether he would have been entitled to workmen's compensation in the event of an injury. James v. Industrial Comm. (1962), 18 Wis.2d 239, 243, 118 N.W.2d 185; Richardson v. Industrial Comm. (1957), 1 Wis.2d 393, 396, 84 N.W.2d 98. However, this factor is not regarded as controlling in determining the question of whether his chauffeur's license was being properly utilized. Indeed, it may well be argued that a contrary ruling in the case at bar would debase the statutory purpose of permitting an individual who has lost his regular driving privileges to use a chauffeur's license only "in the performance of his duties as chauffeur."
Mr. Berthiaume's diversion was so extensive that the circuit court was correct in concluding that he was no longer using his chauffeur's license in the scope of his employment.
By the Court. — Judgment affirmed.