Burant v. Studzinski
| Decision Date | 09 April 1940 |
| Parties | BURANT v. STUDZINSKI et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Portage county; Herman J. Severson, Judge.
Affirmed in part, reversed in part.
Action begun May 25, 1937, by Joseph Burant against Barney Studzinski and Richard Studzinski, his son, to recover for personal damages resulting from the plaintiff's being run into by the truck of Barney Studzinski while driven by Richard. From a judgment in favor of the plaintiff, defendants appeal.
Atwell & Atwell, of Stevens Point, for appellants.
Meleski & Bablitch, of Stevens Point, for respondent.
The defendant Barney Studzinski owns the truck that was being driven by his son Richard on June 14, 1936, the time when the injury to the plaintiff occurred. Richard used the truck to take his mother, his sister, and a girl living with the family to church at Polonia about five miles from the home of Barney Studzinski.
[1][2]So far as Richard's case is concerned the evidence sustains the findings made by the jury holding him guilty of 75 per cent of the negligence, and the judgment against him must stand. Whether or not Barney Studzinski is responsible for the damages is a different matter. If we assume that he knew Richard was intending to take the truck, although Richard had been told not to do so, that knowledge would not answer the requirements which must be met in order to establish liability against the owner of the truck. The question of whether Richard was his father's agent was left to the court. The correctness of the determinationby the court is the subject of this inquiry. The truck belonged to Barney, but the trip to church was made for the purposes of Mrs. Studzinski, Richard, and the two girls as individuals. Barney did not participate in the trip in any way other than to tacitly consent to the use of the truck. The ordinary rules as to actual, apparent, express or ostensible authority must be applied. 5 Am.Juris. p. 701, § 361; 20 A.L.R. 142;99 A.L.R. 420;Novak v. Zastrow, 200 Wis. 394, 228 N.W. 473. The family purpose doctrine as affecting liability of the owner of an automobile has not been adopted in Wisconsin. This has been frequently pointed out in cases reviewed in this court. Crossett v. Goelzer, 177 Wis. 455, 188 N.W. 627;Zeidler v. Goelzer, 191 Wis. 378, 382, 211 N.W. 140, 142. In speaking of this type of case Mr. Justice Doerfler there said:
“In each one of these cases the common law was adhered to that the liability of an owner of an automobile, when operated by any other person, whether he be a stranger or a member of the family, can only be predicated on the principles obtaining in the law of master and servant and of principal and agent; that liability results from the doctrine of respondeat superior; that when an automobile is operated by a member of the family, under circumstances which indicate that it is used solely for the pleasure of the family or for any member or members thereof, liability does not ensue from the mere relationship existing; and that where a machine is taken out solely for the individual pleasure or comfort of a member of the family, even though it be with the consent of the owner, no liability against the owner can ensue.”
[3]We fail to find in the record any evidence that can do more than suggest that Barney Studzinski permitted his truck to...
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