Opinion
February 17, 1948. —
March 29, 1948.
APPEAL from a judgment of the municipal court of Racine county: ELMER D. GOODLAND, Judge. Reversed, and remanded with instructions.
For the appellant there was a brief by Wilbershide Baumblatt of Racine, and oral argument by J. C. Wilbershide.
Alfred E. La France of Racine, for the respondents.
This is an action by appellant Anna Nemeth against respondent Farmers Co-operative Elevator Company and Milwaukee Automobile Insurance Company, Limited, its insurance carrier, for personal injuries. Respondent's truck driver, Ernest Funk, was delivering a load of coal to appellant's farm home. In attempting to back the truck up to a basement window he found that because the ground sloped away from the house he could not keep the truck stationary with the brakes set. After several unsuccessful efforts he got an old fence post to be used as a block and asked appellant to help him. In setting the block under the wheel or in getting ready to do so, appellant was injured.
It is contended by appellant that the driver backed up once and she blocked the wheel, but that when he got out to unload the coal he found he was not close enough to the house; that he decided he would make another try for it, backed up the truck sufficiently to enable her to free the block, which she removed; that he drove ahead again to get a short run up the grade, that they then discussed their preparations, she told him she was ready and he raced the motor as he had done before in preparing to back up, and that she placed the post in front of the rear wheel to be in position to follow the truck to the highest point on the grade; that instead of backing, the truck suddenly moved forward, causing her to be pinioned by the post, from which she sustained the injuries here complained of.
It is the contention of the truck driver that there was but one backing, and that when he reached the highest point on the grade he applied his brakes and that the daughter-in-law of the appellant then shouted to him that appellant was pinioned. He backed up then and the post was released.
The case was tried to a jury. It found that the driver was negligent in that he did drive the truck forward at the time appellant was injured. It found that his negligence was a cause of her injury. It also found that there was no reason for the driver to foresee that an accident might occur as a consequence of this act. The jury likewise found that the appellant was negligent in the manner in which she held the timber; that such negligence was a cause of her injury, and similarly found that there was no reason for her to foresee that an accident might occur as a consequence of her act. The jury apportioned the negligence which contributed to cause the injury, attributing to Ernest Funk nothing, that is, leaving that subdivision of the question unanswered, and attributing to the appellant Anna Nemeth "total 100%."
The appellant moved for a new trial. Respondent moved for judgment dismissing the complaint upon the ground that in any event appellant should not be permitted to recover because under the circumstances an emergency had been recognized by a regular employee of the respondent Farmers Co-operative Elevator Company, and that when he arranged with appellant to place the block, she became a temporary employee of the Farmers Co-operative Elevator Company; that, as such, she has a right of compensation under the Workmen's Compensation Act which constitutes her exclusive remedy. The trial court denied the motion for a new trial, and dismissed the complaint upon the theory advanced by respondent. Appellant brings this appeal.
The verdict is peculiarly framed and its answers inconsistent. The jury made identical findings with respect to negligence and its causal effect, on the part of both the appellant and the respondent. It absolved both from any duty to foresee that injury was likely to ensue from their negligent acts. The jury then attributed the total causal negligence to the appellant, although it apparently found that the truck driver had gone forward when appellant expected him to back the truck. In the face of this finding it is difficult to understand how the jury could fail to find that the driver should have anticipated injury.
The respondent relies upon Berrafato v. Exner (1927), 194 Wis. 149, 216 N.W. 165, in support of its contention that the verdict in the case is complete and that judgment should be rendered dismissing the action upon its merits. We are unable to read anything in the opinion in that case that should give comfort to the respondent upon this point. The court there suggested that the question of negligence might be divided, making one question pertain to ordinary care, a second question upon causation, and a third question upon the subject of anticipation, the purpose being to subdivide the question of negligence into lack of ordinary care and anticipation. It is sufficient to say that the trial court in this case apparently was not following the suggestion made in the Berrafato Case and as a consequence there is here the inconsistency which this court was attempting to avoid in the Berrafato Case.
We are satisfied that this verdict cannot stand and that if the appellant has a cause of action, a new trial is necessary to determine her substantive rights.
The respondent's contention is that appellant was a temporary employee and that she is limited to recovery under the Compensation Act, sec. 102.03 (2), Stats. Heist v. Wisconsin-Minnesota L. P. Co. (1920) 172 Wis. 393, 179 N.W. 583; Johnson v. Ashland Water Co. (1888) 71 Wis. 553, 37 N.W. 823; and Johnson v. Wisconsin Lumber Supply Co. (1931) 203 Wis. 304, 234 N.W. 506. Respondent cites a number of decisions from other jurisdictions to the same effect.
The principal question raised on this appeal is whether the appellant was an .employee of the Farmers Co-operative Elevator Company, as found by the trial court.
In Johnson v. Wisconsin Lumber Supply Co., supra, the defendant's truck loaded with lumber went through a soft spot in the black-top and became stuck in the mud in front of Johnson's farm. Johnson at the request of the truck driver, got out his tractor and pulled the truck out. He was injured in the operation and sued in tort. The court held that he was an employee of the defendant and had only the right to proceed under the Workmen's Compensation Act. The court said, p. 311:
"An emergency having arisen, the driver no doubt had apparent authority if not actual authority to do whatever was necessary to forward his employer's business and release the truck under the circumstances of this case."
It will not be necessary here to determine whether an emergency arose which entitled the truck driver to engage temporary help on behalf of his employer. Under the facts as stated we think it clear that the appellant was engaged in furthering her own interests and that her activities were for the purpose of getting delivery of the coal and not to accommodate the coal company. It would appear to be a rather far cry to make the person who had ordered services an employee merely because she casually assisted a workman who was performing the service. This exception to the rule appears to be supported by the authorities. Denton v. Morgan (1915), 166 App. Div. 117, 151 N.Y. Supp. 729, 119 N.E. 1038.
By the Court. — Judgment reversed, and cause remanded with instructions to grant a new trial upon the merits.