In Wuorinen, the Wisconsin Supreme Court held that a member of the Wisconsin National Guard was not acting within the scope of his military duties at the time of an automobile accident, even though he was considered to be on "active duty" at all times. 56 Wis.2d at 56-57.Summary of this case from OPINION NO. OAG
Argued October 2, 1972. —
Decided October 31, 1972.
APPEAL from a judgment and an order of the circuit court for Racine county: HOWARD J. DU ROCHER, Circuit Judge. Affirmed.
For the plaintiffs-appellants in Case No. 159 there were briefs by Warshafsky, Rotter Tarnoff, attorneys, and Merton N. Rotter of counsel, all of Milwaukee, and oral argument by Merton N. Rotter.
For the plaintiff-appellant in Case No. 160 there were briefs by Habush, Gillick, Habush, Davis Murphy, attorneys, and Howard A. Davis of counsel, and oral argument by Merton N. Rotter, all of Milwaukee.
For the plaintiffs-appellants in Case No. 161 there were briefs by Anthony J. Dentici and oral argument by Merton N. Rotter, both of Milwaukee.
For the defendants-appellants in Cases No. 159 and 160 there were briefs by Schoone, McManus Hanson, S.C., attorneys, and Adrian P. Schoone of counsel, all of Racine, and oral argument by Adrian P. Schoone.
For the defendant-appellant Heritage Mutual Insurance Company in Case No. 161 the cause was submitted on the briefs of Brown, Black, Riegelman Kreul, attorneys, and Richard J. Kreul of counsel, all of Racine.
For the respondent in Cases No. 159, 160 and 161 the cause was argued by Theodore L. Priebe, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
These actions are for personal injuries and wrongful death arising out of a two-vehicle automobile accident. The actions were consolidated for trial and a separate single issue was submitted to the jury as to whether the defendant Walter R. Semenok, a member of the Wisconsin National Guard, was acting in good-faith performance of his military duty at the time of the accident.
The state of Wisconsin is an intervening defendant in all three cases. Its counsel, an assistant attorney general, made a motion for directed verdict prior to the submission to the jury. The trial court reserved its ruling on the motion until after the return of the verdict, and subsequently granted the motion and entered judgment dismissing the complaints as to the state of Wisconsin.
The accident occurred on Friday, July 25, 1969, at about 6 p.m., at the intersection of Highway 80 and Highways 13 and 73, in or near Pittsville, Wood county, Wisconsin. Walter R. Semenok owned and operated a 1969 Oldsmobile. He was traveling in a northerly direction on Highway 80. Wesley J. Fence owned and operated a 1962 Chevrolet station wagon and was traveling in a westerly direction on Highways 13 and 73. The accident occurred in the intersection of these highways. Semenok was seriously injured and suffered amnesia. Wesley J. Fence and two of his passengers, Frank M. Wuorinen and Judith Ann Wuorinen, his wife, were killed; another passenger, Jeffery Kroening, was seriously injured. The Semenok vehicle was insured by State Farm Mutual Automobile Insurance Company and the Fence vehicle was insured by Heritage Mutual Insurance Company.
The defendant Semenok was twenty-six years of age and had been a member of the Wisconsin National Guard six years. He was ordered to active duty at Camp McCoy from July 12, 1969, through July 26, 1969. On July 12th he reported to the Rhinelander armory and traveled to camp by military vehicle, in convoy, with other members of his unit.
During the middle weekend of summer camp he caught a ride from Camp McCoy to near his home at Winchester. Winchester is in Vilas county, north of Tomahawk and about 50 miles northwest of Rhinelander. After his weekend at home he returned to camp in his own car. The purpose of going home was for purely personal reasons — that is, to be with his family. When he arrived at camp he told his captain that he missed his ride back and therefore had to take his own car. The captain said: "Who are you trying to kid? You in fact had no intention of riding back with anybody, did you?" In response to these questions Semenok just smiled. The captain then said he would have to get a permit from the provost marshal in order to keep his car at camp. Semenok procured such a permit and received a sticker to put on his car. Everyone, whether military or civilian, is required to get a permit when he brings his car to camp. The purpose is to expedite identification of the vehicle and the occupant when entering camp.
At camp, Semenok's duties were those of baker. He would commence his duties as a baker at 4 a.m., and work until noon. As was the custom for cooks and bakers, Semenok did not stand routine formations and was given a pass to leave the camp and to come and go as he saw fit during his off-duty hours. He was not obliged to be in uniform while off the post on a pass.
On July 25th, the day of the accident and a day before his active duty tour of two weeks was completed, Semenok finished his baking duties at noon as usual. He had no further duties to perform that day and was free to leave the camp on his pass. In addition, he did not have to report as a baker the following morning because the unit was leaving camp and going back to Rhinelander and no regular breakfast was to be served. His only remaining duty was to help unload equipment after the convoy returned to the armory in Rhinelander at noon July 26, 1969, and then stand in formation to be released from active duty.
After he had finished his cooking duties at noon on July 25th, he showered, dressed in civilian clothes, loaded his clothing and other items in his car and left Camp McCoy. He was last seen on the post at about 4:30 p.m., that day. Thirty minutes later it was announced to the men that everyone was confined to the post until 5 a.m., the next day. Semenok had already left camp and it is undisputed that he was never told to remain in camp after 5 p.m.
At about 6 p.m., the accident occurred 70 miles from camp, at the intersection of Highway 80 and Highways 13 and 73. At the scene of the accident he was dressed in civilian clothes and his car contained his personal military gear and belongings. Semenok was seriously injured and suffered from amnesia. He states that he is unable to remember or account for his movements after he went home that first camp weekend.
Regardless of a cook's status, he is not required to stand in formation at Camp McCoy. So his absence from camp formation would not render him AWOL. On the other hand, standing in formation at the Rhinelander armory was required in order to discharge him from active duty. The commanding officer found out about Semenok's injuries Saturday, the 26th, so he knew he would not be able to make formation. Therefore, when the officer made out his report he did not list Semenok AWOL, but absent due to injuries.
In addition, the following facts should be noted: First, one who uses his own vehicle (designated at POC or POV) is not required to follow any designated route in his travels; second, Semenok was following the same route as the convoy planned on taking back to Rhinelander, but he did not know that this was the return route when he left camp. Therefore it was coincidental that the route planned was the route he followed when the accident occurred. Third, Semenok's POV would not have been included nor allowed to be with the convoy even if he had left with the convoy. And those who use their POV, including Semenok, receive no compensation or mileage for the vehicle's use. Fourth, the Rhinelander armory, which is where Semenok's national guard unit is stationed, was closed and locked, and would not be open until 9 a.m., Saturday, July 26, 1969. And fifth, there was no evidence offered as to where Semenok was actually going that day except that he was heading north in the direction of Winchester and Rhinelander.
All plaintiffs and principal defendants appeal from the judgment and order in favor of the intervening defendant.
The statutes involved are:
"21.13 Defense of members of guard; payment of judgments. If any member of the national guard or the state guard is prosecuted by any civil or criminal action for any act performed by such member while in the performance of his military duty and in pursuance thereof, the action against such member may, in the discretion of the governor, be defended by counsel appointed therefor by the governor upon the recommendation of the attorney general. The costs and expenses of any such defense shall be audited by the department of administration and paid out of the state treasury and charged to the special counsel appropriation in s. 20.455 and if the jury or court finds that the member of the national guard against whom the action is brought acted in good faith the judgment as to damages entered against him shall also be paid by the state."
"345.05 State and municipal liability for motor vehicle accidents. . . .
"(2) Any of the following may file a claim for damages against the state or municipality concerned and the governing body thereof may allow, compromise, settle and pay the same: . . .
"(b) A person suffering any damage proximately resulting from the negligent operation of a motor vehicle owned or operated by the state through the agency of the Wisconsin national guard, the Wisconsin air national guard or the members or employes [employees] thereof when on state duty and whether paid from state or federal funds and which damage was occasioned by the operation of such motor vehicle in the performance of its business."
"270.58 State and political subdivisions thereof to pay judgments taken against officers. (1) Where the defendant in any action or special proceeding is a public officer or employe and is proceeded against in his official capacity or is proceeded against as an individual because of acts committed while carrying out his duties as an officer or employe and the jury or the court finds that he acted in good faith the judgment as to damages and costs entered against the officer or employe shall be paid by the state or political subdivision of which he is an officer or employe. Regardless of the results of the litigation the governmental unit shall pay reasonable attorney's fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employe did not act in good faith, when it does not provide legal counsel to the defendant officer or employe. . . ."
The determinative issue is whether there was any credible evidence which would support a jury verdict that the defendant Semenok was acting in good-faith performance of his military duty and in pursuance thereof as a member of the Wisconsin National Guard at the time of the accident.
In this case the evidence must be viewed in a light most favorable to the plaintiffs and principal defendants because the verdict was directed against them. And in Weber v. Walters (1954), 268 Wis. 251, 255, 67 N.W.2d 395, we said:
"`The rule of law is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is for the jury should be firmly adhered to and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned. Wisconsin Telephone Co. v. Russell (1943), 242 Wis. 247, 252, 7 N.W.2d 825, and cases there cited.' Czerniakowski v. National Ice Coal Co. 252 Wis. 112, 115, 31 N.W.2d 156."
We believe, in the case at hand, that the evidence is undisputed and that as to the material issue the inferences to be drawn are not uncertain and that an issue of law is presented.
The crucial question in dispute is really what law applies in this case. The appellants' position is that the "broader tests" and the "dual purpose test" adopted in workmen's compensation cases are the controlling law. The appellants particularly rely on Barragar v. Industrial Comm. (1931), 205 Wis. 550, 238 N.W. 368, and Matter of Marks v. Gray (1929), 251 N.Y. 90, 167 N.E. 181, in which this court adopted those tests to be applied in such cases. The broader test is that for such injuries to be compensable the question is whether at that material time the employee was performing services growing out of and incidental to his employment. Butler v. Industrial Comm. (1953), 265 Wis. 380, 61 N.W.2d 490. The dual purpose doctrine grew out of the following language adopted by this court at pages 384, 385:
"`Workmen's compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co. 330 U.S. 469, 481; Matter of Waters v. Taylor Co. 218 N.Y. 248, 251, 112 N.E. 727, 728. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the "obligations or conditions" of employment create the "zone of special danger" out of which the injury arose.'"
In Butler, the court went on to state that the principles of the common-law doctrine of respondeat superior (the law of master and servant) do not apply to workmen's compensation cases. The reasons why the court adopted these doctrines is based on the same rationale of the Louisiana court, which was quoted in Butler. The court stated, at page 384:
"`These pronouncements reflect the modern judicial concept of compensation legislation, which is based on the premise that the phrase "arising out of the employment" does not have the same connotation as the common-law "scope of employment," the interpretation earlier attributed to it, but means, instead, the employment viewed from any aspect — its nature, conditions, obligations, and incidents. They lend emphasis to the growing recognition of the fact that judicial interpretation of these acts creating liability irrespective of fault in the light of common-law liability predicated on fault hedges this humanitarian legislation about with the very restrictions it sought to circumvent and abolish, and nullifies the underlying insurance principle inherent in this industrial compensation.'"
This is not a workmen's compensation case so neither the broader test of employment nor the dual purpose doctrine are controlling. Rather, the principles of the common-law doctrine of respondeat superior apply. The case at bar involves third parties seeking money damages from the state because of Semenok's negligence and not Semenok seeking benefits under workmen's compensation law.
"The plaintiff takes the erroneous position that the mere fact Curtis' travel was necessitated by Ford, Bacon Davis' assignment of him to the La Crosse area renders his travel an act within the scope of his employment. Relying on Barragar v. Industrial Comm. (1931), 205 Wis. 550, 238 N.W. 368, wherein this court quoted from Matter of Marks v. Gray (1929), 251 N.Y. 90, 167 N.E. 181, the plaintiff contends that once the trip is established to be that of the employer, it is unnecessary to establish the employer's right to control the details of the trip.
"`"Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." (Italics ours.)'
"Even assuming the purpose of the trip was sufficiently that of the employer, the plaintiff is in error in that the right to control has long been the touchstone in determining whether one was acting within the scope of his employment. Barragar and Marks which was cited therein, unlike the instant case, involved a claim arising out of the Workmen's Compensation Act. This court, as early as Butler v. Industrial Comm. (1953), 265 Wis. 380, 383, 384, 61 N.W.2d 490, recognized that the principles of the common-law doctrine of respondeat superior were different from those applicable to workmen's compensation cases.
"In the instant case, while Curtis was reimbursed for neither expenses incurred in traveling from his former home to La Crosse nor for expenses in moving his family and belongings, he was compensated for the cost of traveling from his former home to Omaha. Such reimbursement however, did not grant nor did Ford, Bacon Davis exercise any control over the method or route of Curtis' travel."
Therefore the "right of control" is material to determine whether Semenok was acting within the scope of his employment. We believe the answer is clear. One authorized to leave on pass to do what he wants on his own free time for a period of twenty-four hours is not acting within the scope of his military duty nor in pursuance thereof. The national guard was in no way controlling Semenok's free time, and the national guard did not control Semenok's conduct at these material times, nor the method or route of travel in his private vehicle.
In Strack v. Strack (1961), 12 Wis.2d 537, 107 N.W.2d 632, it appears an employee drove his own car to the "home farm" to report for work, and from that time forward he was being paid for his time. He was then assigned to a jobsite located some miles away. He was permitted but not directed to drive his own car to the jobsite. While driving there in his own vehicle he collided with another car. This court held that he was not acting within the scope of his employment, citing Restatement, 1 Agency 2d, p. 530, sec. 239, comment b, as authority, stating at pp. 541, 542:
"`The master may authorize the use of a particular instrumentality without assuming control over its use as a master. The fact that he does not own it or has not rented it upon such terms that he can direct the manner in which it may be used indicates that the servant is to have a free hand in its use. If so, its control by the servant, although upon his master's business, is not within the scope of the employment.'
"Illustration 4, page 531, of the above comment also illustrates the principle to be controlling here. This is:
"`The master agrees with A, his servant, to pay for A's transportation upon public vehicles such as railway trains and streetcars. As an alternative, A is permitted to use his own automobile for transportation, charging to the master the regular train fare. A is paid by the week, with indefinite hours of labor. In going to a place at which he is to perform work for the master, A drives his own car, carrying thereon necessary tools and materials belonging to the master. In the absence of evidence that A owes P any duty of obedience in the details operating the automobile, such driving is not within the scope of employment.'"
Therefore, like in the Strack and Kamp Cases, the employee Semenok was not directed nor ordered to use his vehicle in traveling to his next place of duty or employment. Semenok was on pass and free to use his own vehicle as he saw fit. He chose his own route of travel free from any supervision or control or even knowledge by the national guard. There is no evidence that Semenok was performing any act of benefit for his unit. Semenok's acts at the time in question do not conform to any of his military duties, responsibilities or orders. Instead, he was at liberty under pass without direction or control as to how he would spend that free time. Under these circumstances we believe the trial court was compelled to change the jury's verdict so as to find Semenok outside the scope of his military duty — that is, he was not acting within the scope of his employment at the time of the accident and was not in good-faith performance of his state duties.
Appellants also contend that because Semenok was on "active duty" from July 12, 1969, through July 26, 1969, this places him continually within the scope of his employment until his active duty terminates. If this is the case, then by analogy, police officers and those people who make the armed forces a career would be acting twenty-four hours a day within the scope of their employment. And this would continue for years or until they retire from active service. Surely "active service" should not be the determining factor. Military duty is a unique status and the government's ability to control Semenok as an employer is only by virtue of its military capacity. By the very nature of such a relationship the necessary element of control should encompass only those particular functions for which he was required to perform — not the totality of one's conduct while in military status. The national guard's only concern was that he report for duty at Rhinelander at noon on July 26th. The mode and manner of his travel was of his own choosing and for his own benefit. He came down in a convoy and could have gone back by convoy. His response as to why he brought his car down to camp from his midweekend trip home clearly indicates only one inference. That inference is that his intentions were purely of a personal nature. The car was for his own use and benefit subject to the control of no one but himself. He had undertaken to get where he was going on his own responsibility. The operation of the car was undertaken at his responsibility and not as an activity of the government. Any inferences drawn to the contrary are clearly unreasonable under the facts of this case. He was in no way acting within the scope of his military duty as a cook or anything else. The trial court properly granted the motion for a directed verdict.
Because we are of the opinion the trial court correctly directed the verdict against the claims of the plaintiffs and the principal defendants and entered judgment dismissing the claims against the intervening defendant, the issues of subrogation and indemnification raised by motions for summary judgment need not be considered.
By the Court. — Judgment and order affirmed.