Bernard v. Jennings
| Decision Date | 11 October 1932 |
| Citation | 209 Wis. 116,244 N.W. 589 |
| Court | Wisconsin Supreme Court |
| Parties | BERNARD v. JENNINGS. |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.
Action by Edna Bernard, special administratrix of the estate of George Bernard, deceased, against Burley Jennings. From the judgment for plaintiff, defendant appeals.--[By Editorial Staff.]
Affirmed.
Action begun October 7, 1931; judgment entered January 9, 1932. Automobile accident. The deceased, George Bernard, and the defendant were employees of one E. E. Falbe, of Cornell, Wis., engaged in the business of operating trucks which carried automobiles from the factory in the state of Ohio to Eau Claire. Bernard was hired by the month, Jennings by the hour. Bernard had been working on the truck, at the time of the accident, for about two months, and Jennings for three weeks.
On May 8, 1931, while operating the truck in the state of Indiana, the accident occurred. The men took turns operating the truck, and while one was driving, the other, at least part of the time, slept on a cushion of the car. They procured gasoline on the trip, provided their own meals and lodging. There was a reserve gas tank on the left-hand side and by turning a petcock the reserve tank was made available for use. While Jennings was operating the car and Bernard was asleep, Jennings attempted to turn this petcock by putting his foot on the running board and reaching for the petcock, in the meantime keeping the car in motion. While engaged in this act, the car left the road, struck a tree, Jennings was rendered unconscious, and Bernard was killed.
This action was begun by the plaintiff as administratrix of the estate of Bernard to recover damages from Jennings. The jury by a special verdict found that Jennings was negligent in attempting to turn the petcock; that the death of Bernard was the natural result of such negligence. The jury found that Bernard was not negligent in respect to his own safety, (a) in undertaking the trip with the understanding that he and the defendant Jennings were to alternate in operating the truck and in each sleeping while the other was operating, (b) in going to sleep immediately before the accident and thereby intrusting the operation of the truck entirely to the defendant Jennings; assessed the plaintiff's damages at $10,000, for which the plaintiff had judgment, and from which judgment the defendant appeals.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.
Genrich & Genrich, of Wausau (L. A. Pradt, Jr., of Wausau, of counsel), for respondent.
[1] On behalf of the defendant it is argued that the rule applicable to host and guest should be applied as between Bernard and Jennings, and that as a consequence Bernard was guilty of contributory negligence as a matter of law in intrusting himself to the care of Jennings while he slept in the truck. Bernard and Jennings were clearly coemployees and as such owed to each other the duty to exercise ordinary care in discharging the duties of their common employment. McGonigle v. Gryphan, 201 Wis. 269, 229 N. W. 81.
[2] The question of whether or not Bernard was guilty of contributory negligence, in permitting Jennings to take full charge of the truck while he was asleep under all the circumstances known to him, was fully covered in the questions submitted by the court in the special verdict and the instructions of the court. Being coemployees, the mere fact that they were assisting each other in the performance of a duty which they owed to their common employer does not warrant holding that they were engaged in a joint enterprise as that term is used in the law of negligence.
It is likewise considered that such issue as was presented with respect to the assumption of risk was fully covered by the questions...
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...actions brought by the personal representatives of the employee under the wrongful death statutes of another state. Bernard v. Jennings, 1932, 209 Wis. 116, 244 N.W. 589; Anderson v. Miller Scrap Iron Co., 1921, 176 Wis. 521, 182 N.W. 852, affirmed, 1922, 187 N.W. 746. The Iowa Supreme Cour......
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...1921, 99 Or. 58, 190 P. 331, 195 P. 163; Gilbert v. Des Lauriers Column Mould Co., 180 App.Div. 59, 167 N.Y.S. 274; Bernard v. Jennings, 1932, 209 Wis. 116, 244 N.W. 589. As was stated in Maki v. George R. Cooke, 6 Cir., 1942, 124 F.2d 663, 664, 146 A.L.R. 1352, certiorari denied 316 U.S. 6......
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