Bourestom v. Bourestom

• Decision Date: 21 June 1939
• Parties: BOURESTOM v. BOURESTOM.
• Court: Wisconsin Supreme Court

231 Wis. 666

285 N.W. 426

BOURESTOM

v.BOURESTOM.

Supreme Court of Wisconsin.

April 11, 1939.

Dissenting Opinion April 21, 1939.

Rehearing Denied June 21, 1939.

Appeal from a judgment of the Circuit Court for Douglas County; W. R. Foley, Judge.

Reversed.

Action begun January 12, 1938, by Mary Bourestom against Norman Bourestom, her husband, to recover for injuries sustained as the result of an automobile accident. A jury having found the defendant guilty of negligence in several respects, judgment was entered in favor of the plaintiff. The defendant appeals from the judgment, and there is a motion by the plaintiff for review of an adverse ruling.

In October, 1936, the plaintiff and the defendant were living together in the state of Minnesota. With their two children they started to drive to Arizona. At Rochester, Minnesota, Mr. and Mrs. Lyon joined them. The accident occurred in the state of Oklahoma on October 25, 1936, at about 10:30 P. M. It was dark and raining. During the evening Mary Bourestom frequently cautioned her husband not to drive so fast, but he told her he could manage the car.

For a distance of about a mile Bourestom followed another car, waiting for a chance to pass. Just before the accident he was travelling between thirty-five and sixty miles per hour and was twenty to thirty feet behind the other car. Suddenly it swerved to the left. In the right lane appeared the headlights of an approaching car. Before Bourestom could apply his brakes or turn, the two automobiles struck in a head-on collision, and Mary Bourestom was severely injured.

Action was commenced by personal service of the summons upon the defendant in Douglas county in this state. The defendant made a general appearance and proceeded a trial, raising no question as to the jurisdiction of the court until the close of the testimony, when he urged that it was against the public policy of this state to entertain the action. The case was submitted to a jury, which found that Bourestom was negligent as to speed and lookout and as to driving too close to another car. The jury also found that as to management and control Bourestom had added to the risk which the plaintiff assumed when she entered the car, and that the plaintiff was not guilty of lack of ordinary care. Judgment was entered upon the verdict.

The plaintiff's motion for review is directed at a ruling of the trial court on the question whether contributory negligence and assumption of risk are for the jury. In the trial court the plaintiff urged that the Wisconsin courts are bound by sec. 6, art. 23, Okl.Const., Okl.St.Ann., which provides that the defense of contributory negligence or assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left for the jury. The trial court ruled against this contention, holding that the constitutional provision relates to a matter of procedure and is not binding upon Wisconsin courts. However, as indicated above, questions on contributory negligence and assumption of risk were submitted to the jury.

FOWLER, J., dissenting.Crawford & Crawford, of Superior, and J. R. Zuger, of Duluth, Minn. (Abbott, MacPherran, Dancer, Gilbert, Doan & Zuger, of Duluth, Minn., of counsel), for appellant.

Donald A. Rock, of Superior (Benjamin W. Pass, of Duluth Minn., of counsel), for respondent.

FAIRCHILD, Justice.

[1] Neither the plaintiff nor the defendant is domiciled in Wisconsin. It appears that the parties were and are living together as husband and wife in Duluth, Minnesota. The accident occurred in Oklahoma, while the parties with some friends were on an automobile trip. In Minnesota a wife cannot maintain an action in tort against her husband. Woltman v. Woltman, 1922, 153 Minn. 217, 189 N.W. 1022. The rule is otherwise in Wisconsin, Wait v. Pierce, 1926, 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276;Fontaine v. Fontaine, 1931, 205 Wis. 570, 238 N.W. 410.

[2] It is urged by the defendant that as a matter of public policy the courts of Wisconsin should refuse to take jurisdiction of the present action, both because the state should not be burdened with the expense of trial and because the plaintiff could not maintain the action in the state of her domicile. But the cause of action is transitory and citizens of other states have the same right to bring such an action here as citizens of Wisconsin have. Section 2, art. 4, U.S.Const., U.S.C.A. Under the rule of the Wisconsin cases, the trial court could not refuse to take jurisdiction. Eingartner v. Illinois Steel Co., 1896, 94 Wis. 70, 68 N.W. 664, 34 L.R.A. 503, 59 Am.St.Rep. 859;State ex rel. Smith v. Belden, 1931, 205 Wis. 158, 236 N.W. 542;Sheehan v. Lewis, 1935, 218 Wis. 588, 260 N.W. 633.

By their special verdict the jury found that the defendant failed to exercise ordinary care with respect to (1) speed, (2) lookout, (3) distance between his car and the car ahead, and (4) increasing the danger or adding to the risk which the plaintiff assumed when she entered the car. The principal contention of the defendant is that Mary Bourestom is barred from recovery because she had assumed the risk of her husband's negligence as to speed and as to following too closely. It is also contended that negligence as to lookout was not a cause of the accident.

[3][4] The term “assumption of risk” has caused some difficulty and perhaps a happier phrase might be coined, but it is conveniently used in referring to the duty of the host not to increase the hazard assumed by the guest when entering the car, and the responsibility of the guest to refuse hospitality if he knows of careless habits or fixed defects which make the host an unsafe driver. The guest who voluntarily takes a chance on known dangers in preference to renouncing the benefits of the relationship which he creates by entering the car, must himself bear the consequences when he is injured by reason of a known danger. Switzer v. Weiner, Wis. 1939, 284 N.W. 509.

[5] In the present case, the jury found that the defendant failed to use ordinary care with respect to the speed at which he drove and the distance behind the next car. There was submitted to the jury the question, “As the defendant, Norman Bourestom, approached the place of collision, did he fail to use ordinary care by increasing the danger or adding to the risks which the plaintiff, Mary Bourestom, assumed when she entered the car, in respect to Norman Bourestom's management and control of his car?” The court properly instructed the jury that the guest accepts whatever risk attends the degree of proficiency the host has acquired as a driver, and such usual and customary habits of driving as the guest may be familiar with from former experience. The jury found that Norman Bourestom did add to the risk assumed, and that the plaintiff's injury resulted. Since this question was not broken down into the three elements of negligence found in the other questions of the verdict, it is necessary to examine the record in order to determine whether the jury could find that the defendant's negligence in any one respect was a cause of the accident, and that in that respect the risk was not assumed by the plaintiff.

[6] There is no evidence in the record to sustain the finding that failure as to lookout was a cause of the accident. The plaintiff admits that as the car ahead swerved and she saw the lights of the oncoming car, the accident happened in a flash. Mr. Lyon and the defendant gave similar testimony. Bourestom testified that he heard his wife scream before he saw the headlights, but the plaintiff's scream and the defendant's discovery of the invading car must have been practically simultaneous, and because of the proximity of the cars to each other at the first instant when the danger could be discovered, it is evident that there was not time to apply the brakes or to turn the car aside. The plaintiff, who was seated on the right hand side of the car, would naturally be able to see the lights of the invade before it was possible for her husband to see them from his position at the wheel. The testimony of Mr. Lyon, who was on the right in the front seat, is typical of all the testimony on this point. He was asked:

“Q. Tell me what happened just before the accident occurred? A. Well, when we got up to this car, got kind of close to it, this car swerved to the left.

“Q. Which car? A. The car ahead of us swerved to the left and before we knew it just as he swerved, why we hit something.”

Since there was no failure of lookout, the action cannot be maintained unless either speed or following too close to another car was a cause of the accident, and even if one or the other was a cause, the plaintiff cannot recover if she had assumed the risk of the particular cause which operated.

With respect to following too closely the case is controlled by the doctrine of Byerly v. Thorpe, 1936, 221 Wis. 28, 33, 265 N.W. 76, 78. In that case the defendant...