Callies v. Reliance Laundry Co.
| Decision Date | 08 December 1925 |
| Citation | 206 N.W. 198,188 Wis. 376 |
| Parties | CALLIES v. RELIANCE LAUNDRY CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.
Action by Emma Callies against the Reliance Laundry Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Action by the plaintiff, the mother and sole living parent of Raymond Callies, a minor 13 years of age, to recover damages for medical expenses incurred and for loss of services of the minor suffered through an injury negligently inflicted upon the minor by the defendant. The jury found that the minor was guilty of contributory negligence. This finding was sustained by the trial court, and judgment was entered for the defendant dismissing the cause of action upon its merits.Padway, Skolnik & Winnecour, of Milwaukee, for appellant.
Shockley & Dougherty, of Milwaukee, for respondent.
The appellant's counsel does not very seriously controvert the correctness of the answer finding the minor guilty of contributory negligence, and a perusal of the evidence satisfies us that the answer is in accordance with the facts shown. But counsel contends that notwithstanding the contributory negligence of the minor, the mother is entitled to recover, and that is the question squarely raised by the appeal. In order that the appellant's contention may be correctly set forth, we quote somewhat at length from his brief which shows the major contentions contended for by him. He states:
“Perhaps the question here raised is directly brought to the attention of this court for the first time. It may be said that our contention conflicts with apparently settled authority. Lest it may appear audacious on our part in raising a point so apparently undisputed, we submit: Though it is not difficult to find instances of the application of the rule where the negligence of a minor was imputed to his parent, we are at a loss to discover any sound logic in support of it, but, on the contrary, we find every reason against it.
It is impossible to name any basis, whether founded on principles of natural justice or of public policy, for the further maintenance of this ancient holding, but, on the other hand, every reason from the standpoint of legal science and natural justice presents itself for its repudiation.
The case summed up is thus: A parent sustains damages because of the injury to her child. The injury is occasioned by the negligence of a third person coupled with some contributory negligence on the part of the child. The parent had no hand in bringing on the loss to herself, other than the fact of being a parent upon whom the law imposed a duty of providing her child with food, raiment, shelter and medical attention. Shall the law say: ‘Since the plaintiff has been the hapless parent of a neglected child, hurt through a concurrence of its negligence with the defendant's carelessness, let the parent alone pocket the loss; and, as for the defendant (but for whose carelessness in concurrence with that of the child no loss or damage to the parent would have occurred), let him go unscathed’? Or shall it say, ‘The joint tort-feasor, a wrongdoer, shall not receive absolution for his wrongdoing because of the accident of relationship between his joint-feasor and the person who has been damaged, particularly without any fault on the part of the person damaged or injured’?
A placing of the two views above expressed in juxtaposition readily points out the former as arbitrary, archaic, and based upon no stronger reasoning than a fiction of law; while the latter is recognized as reasonable, just scientific, and in accord with modern legal trend.
It may be urged that the relationship is what gives rise to plaintiff's cause of action, and without it she would have no cause of action, but it is this relationship that imposes upon her the obligation of furnishing medical attention, etc., and for that reason vests her with the right of recoupment of her loss through the act of any wrongdoer.”
Counsel for appellant strongly urges us to go one step further than we did in the case of Reiter v. Grober, 173 Wis. 493, 181 N. W. 739, 18 A. L. R. 362, in which we held, reversing Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558, that the negligence of a driver of a private conveyance was not imputed to the guest, and to hold that the negligence of a minor should not be imputed to the parent in this cause of action. Our attention is called to cases in our own court and in other courts in which relations different from that of husband and wife or parent and child have existed, and in which it has been held that the negligence of the one has not been imputed to that of the other. Counsel frankly concedes that indirectly, or at least by implication, our court has consistently held that where the relation of parent and child exists the parent cannot recover for loss of services, if the minor has been found guilty of contributory negligence. But it is said that such holding has been by implication, and that it has been assumed to be the law rather than distinctly held to be the law. This view is shared by Prof. Gilmore in an article on imputed negligence in volume 1, Wis. Law Review No. 4, pp. 206-211.
Appellant's counsel further contends that the reasons usually given for holding that contributory negligence of a child is a defense in an action when the parent or the husband sues for loss of services of his wife are not judicial reasons, and are not based upon facts as they actually exist calling special reference to the case of C., B. & Q. Ry. Co. v. Honey, 63 F. 39, 12 C. C. A. 190, 26 L. R. A. 42, in which case one main reason given is that since the husband can control the actions and conduct of the wife he is responsible for such conduct. The same reason has been given with reference to a parent to the effect that, having the right to control the actions and conduct of...
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