Archer v. Chi., M., St. P. & P. Ry. Co.

• Decision Date: 05 June 1934
• Citation: 255 N.W. 67,215 Wis. 509
• Court: Wisconsin Supreme Court
• Parties: ARCHER v. CHICAGO, M., ST. P. & P. RY. CO. ET AL.

215 Wis. 509

255 N.W. 67

ARCHER

v.CHICAGO, M., ST. P. & P. RY. CO. ET AL.

Supreme Court of Wisconsin.

June 5, 1934.

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge.

Action by Mabel Archer against the Chicago, Milwaukee, St. Paul & Pacific Railway Company, Dallas L. Archer, and another. From a judgment for plaintiff against named defendants, they appeal.--[By Editorial Staff.]

Affirmed as to defendant Archer, and reversed as to defendant railway company, with directions to dismiss the complaint as to the latter defendant.

The action was commenced on January 2, 1931, by Mabel Archer, plaintiff, against Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Dallas L. Archer, and General Casualty Company of Wisconsin, defendants, to recover for personal injuries sustained when a car driven by her husband, Dallas Archer, and in which she was riding, collided with a train of the defendant railroad company. The case was tried to the court and a jury, and a special verdict rendered. The jury found the railroad company negligent in failing to give warning by swinging a lantern at the crossing prior to the collision. The defendant Dallas Archer was found negligent with respect to management, control, and lookout, but was exonerated with respect to speed. Plaintiff was found not to have been contributorily negligent. The action against the insurance company was dismissed, and no question is here raised as to the propriety of this ruling. Judgment was ordered and entered on December 7, 1933, upon the verdict, in favor of the plaintiff. Defendants Chicago, Milwaukee, St. Paul & Pacific Railroad Company and Dallas L. Archer appeal.Bender, Trump, McIntyre & Freeman, of Milwaukee, for appellant Railway Co.

Hannan, Johnson & Goldschmidt, of Milwaukee (Martin R. Paulsen, of Milwaukee, of counsel), for defendants Archer and others.

Lines, Spooner & Quarles, of Milwaukee (L. S. Clemons, of Milwaukee, of counsel), for respondent Mabel Archer.

WICKHEM, Justice.

The accident which gave rise to this action occurred about 10 o'clock at night at the intersection of West Greenfield avenue with the tracks of the defendant railroad company in West Milwaukee. The car in which plaintiff was riding collided with a box car that was being backed across the street. There was no light at the end of the box car, and no attack is made upon the finding of the jury that the flagman did not give proper warning of the approach of the train. The car was owned by plaintiff and her husband jointly. Both were designated as the named assured in the liability policy upon the car. The evidence is that sometimes plaintiff would drive the car for her husband and at other times he would drive the car for her. On the occasion in question, plaintiff and her husband, the latter driving and the former riding in the rear seat, had driven to West Allis to visit a married daughter. At the time of the accident they were returning to their home. No attack is made upon the finding of the jury that the defendant Dallas Archer, husband of plaintiff, was negligent with respect to management, control, and lookout.

[1] On behalf of the defendant Archer it is urged that plaintiff was guilty of contributory negligence as a matter of law, and that she assumed the risk of injury as a matter of law. Numerous errors are also assigned with reference to instructions and manner of submission of the issues to the jury. On behalf of defendant railroad company it is urged that the evidence clearly points to the existence of a relationship between plaintiff and her husband that results in his negligence being imputed to her; that upon the occasion in question he was her agent to operate the car; and that under familiar principles of agency his negligence is her negligence. Since this action was tried upon the theory that plaintiff was a guest and her husband the host, and since the nature of their relationship to each other vitally affects the conclusions as to liability in this case, the contention of the defendant railroad company will first be considered.

The contention is based upon the fact that plaintiff and defendant Archer were joint owners of the car, and upon the occasion in question jointly interested, first, in visiting their daughter, and, immediately before the collision, in returning to their home. It is contended by plaintiff that neither joint adventure nor agency can be predicated upon a purely social relationship. Brubaker v. Iowa County, 174 Wis. 574, 183 N. W. 690, 18 A. L. R. 303;Sommerfield v. Flury, 198 Wis. 163, 223 N. W. 408.Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627, and Papke v. Haerle, 189 Wis. 156, 207 N. W. 261, are cited to the proposition that neither the relationship of the parties nor the ownership of the automobile determines the question of agency, and Enea v. Pfister, 180 Wis. 329, 192 N. W. 1018, and Philip v. Schlager (Wis.) 253 N. W. 394, are cited to the effect that the presumption of agency arising out of ownership is a mere rule of procedural policy throwing the burden of going forward with the proof upon the owner to establish that the driver was not his agent. None of these cases is in point here.

In this case two circumstances are present which vitally affect the legal relations of the parties. The first is that the parties jointly owned the car, and the second is that they were engaged in an enterprise in which they were jointly interested. At the time of the accident each was exercising, so far as physically possible, joint ownership, possession, and control of the car. Obviously, both could not drive the car at once, and it was necessary that one of them assume this duty. On this occasion it happened that the husband drove. On others the wife had driven, and the evidence is that, considering their whole use of the car, neither knew which drove the most. It is evident that the selection of the driver was not based upon any important considerations, and simply constituted a surrender to the physical limitations heretofore referred to. Such a state of facts did not result in a host-guest relationship. It could not be true that as often as husband and wife relieved each other in driving upon a single trip, the person moving into the driver's seat would at once become the host and the other a guest, and that the relationship would be reversed upon each such change. It is impossible to escape the conclusion that the husband in this case was driving not only in the exercise of his right as a joint owner, but on behalf of his wife, who was also an owner and equally interested in the trip. Under these circumstances, it is clear that plaintiff and defendant Archer were engaged in a joint enterprise, and that the negligence of Archer is imputed to his wife.

In Restatement, Torts (Tent. Draft No. 10) § 30, comment f, it is stated: “The fact that the driver and another riding with him are in joint possession of the vehicle is sufficient to make any journey taken by them therein a joint enterprise irrespective of whether the journey is or is not made for a common business purpose. This is so not only where the joint possession arises from a joint hiring but also where it results from a joint ownership.”

This is a comment upon a section dealing with imputed contributory negligence. These considerations compel the conclusion that upon the undisputed evidence, the negligence of plaintiff's husband, the defendant Archer, is imputed to her and that this bars her recovery against the defendant railroad company.

[2] We now proceed to a consideration of the liability of defendant Archer to plaintiff. While the action was tried upon the theory that plaintiff was her husband's guest, this would not be prejudicial to defendant if the liability of the latter, as her agent or quasi agent, depends upon the same considerations. It is our conclusion that, upon the occasion in question, the relation of defendant Archer to plaintiff was analogous to that of a gratuitous agent. It is quite true that plaintiff had not the same right to control defendant that she would have if he had been nothing more than her agent. However, he was her agent in the sense that, in part at least, he was acting on her behalf and in her interest, and having assumed so to act he sustained an obligation to exercise due care, equal...