Christiansen v. Schenkenberg

• Decision Date: 07 April 1931
• Citation: 236 N.W. 109,204 Wis. 323
• Parties: CHRISTIANSEN v. SCHENKENBERG ET AL.
• Court: Wisconsin Supreme Court

204 Wis. 323

236 N.W. 109

CHRISTIANSEN

v.SCHENKENBERG ET AL.

Supreme Court of Wisconsin.

April 7, 1931.

Appeal from a judgment of the Circuit Court for Racine County; S. E. Smalley, Circuit Judge. Reversed.

Action by Sine Christiansen, as executrix of the last will and testament of Fred J. Christiansen, deceased, plaintiff, commenced on the 17th day of September, 1928, against Richard Schenkenberg, Edward Kratz, Ætna Casualty & Surety Company, and Ætna Life Insurance Company, defendants, to recover damages resulting from an automobile collision. From a judgment rendered on the 11th day of August, 1930, in favor of the plaintiff and against the defendant Richard Schenkenberg, the defendants Ætna Casualty & Surety Company and Ætna Life Insurance Company appeal.

See, also, 200 Wis. 581, 229 N. W. 62.Quarles, Spence & Quarles, of Milwaukee (Kenneth P. Grubb, of Milwaukee, of counsel), for appellants.

Simmons, Walker, Wratten & Sporer, of Racine, for respondent.

OWEN, J.

While the defendant Richard Schenkenberg was driving the automobile of the defendant Edward Kratz, on the 30th day of May, 1928, in Racine county, he collided with the automobile of plaintiff's decedent, causing his death, to recover damages for which this action was brought. Judgment was rendered against the defendant Richard Schenkenberg and the defendant insurance companies. The action was dismissed as to the defendant Kratz. This appeal presents no challenge to the judgment as against Richard Schenkenberg. Neither his negligence nor his liability is controverted. The sole question presented is whether the insurance companies are liable upon their indemnity or insurance policies issued to the owner of the car, Edward Kratz, not only to indemnify him but any other person driving the car with his consent.

It is conceded that Kratz was the owner of the car. It is conceded that at the time of the accident it was driven by the defendant Richard Schenkenberg. It is conceded that the defendant Kratz was not present at the time of the accident, and that the car was not driven in the prosecution of his business. The sole question is whether the evidence supported the finding of the jury that at the time of the accident Richard Schenkenberg was driving the car with the express or implied consent of the owner, Edward Kratz. This question was sharply contested on the trial.

It appears that Edward Kratz was a brother of the widowed mother of the defendant Richard Schenkenberg. For a number of years he had boarded with her in her home in the village of Waterford. She had two sons, Richard and Forrest. Some years ago Kratz bought a Buick car and kept it in his sister's barn. Up to about eighteen months prior to the accident, his nephews Richard and Forrest frequently drove the car with his consent. Kratz claims that at about that time and ever since he declined them permission to drive the car. In corroboration of this claim he testified that he went to Colorado during the month of January, 1928, at which time he dismantled the car with a view of preventing its use by his nephews. He took out the battery, and took some other equipment from the car, which he hid in various places with the thought that they would be unable to find the same, rendering the use of the car by them impossible. He returned in March, when he restored the accessories and equipment to the car, but gave orders to Richard Schenkenberg not to use the car. There is testimony that in order to prevent its use by Richard Schenkenberg he locked the door of the barn, removed the spark plug, and chained the rear wheels. Mrs. Schenkenberg, the mother of Richard, testified that Kratz had ordered Richard to leave the car alone and not to use it, and the testimony of Richard himself tends to corroborate the testimony of Kratz and his mother.

[1] If there were no other testimony in the case the testimony of these three witnesses would be conclusive that prior to the accident Kratz had given Richard positive instructions not to use the car. However, there is testimony in the case by numerous residents of the village of Waterford that during all of this time Richard customarily and frequently drove the car; many of them testifying that to their knowledge he drove it once or twice a week. They saw him driving it as frequently as once or twice a week during the time that it is claimed he was under orders to leave it alone. This testimony was admissible as establishing custom or usage in the nature of general consent.

While in general outline the testimony of Kratz was positive that he had forbidden Richard using the car, there are some things in the testimony of Kratz himself not entirely consistent with this attitude. Kratz had a talk with Richard the evening after the accident. According to his own testimony, Richard wanted him to get another tire for the car so that he could go out again that evening. Kratz said that he told Richard, “That car isn't going out to-night if I have anything to say about it.” The fact that Richard felt free to ask Kratz to get another tire for the car so that he could take it out again that evening is hardly consistent with Kratz' professed attitude. He testified that he told him about two weeks before the accident not to drive the car, but he admits that he saw him driving it after that time and said nothing to him about it. Two witnesses testified that, when interviewed by the plaintiff's attorney as to whether he had given Richard permission to use the car on this occasion, Kratz replied, “He took it as he always does.” This statement made by Kratz at that time is entirely consistent with a usual custom on the part of Richard to take the car whenever he wanted to, with the knowledge and consent of Kratz. There is further testimony that Kratz himself drove the car very little; that he had driven it only once or twice during the last year; yet it was kept in condition for use and was continually used by Richard.

[2][3][4] It is contended by the respondent that this continued and customary use of the car by Richard gave rise to a permissible inference that such use was by and with the consent of Kratz. In this we concur. If there were no other evidence in the case, the reasonable inference to be drawn from this persistent use of the car by Richard would be that such use was by and with the consent of Kratz. Conceding that these circumstances justify the inference of consent, the positive testimony to establish a contrary conclusion cannot destroy the probative force of such circumstances. Such evidence might overcome them, might outweigh them, but it cannot take them out of the case. No matter what evidence is placed on the other side of the scales, this evidence remains, and all of the evidence in the case must be weighed and balanced by the jury. State v. Hintz, 200 Wis. 636, 229 N. W. 54. A determination of the weight of evidence is a jury function. “If there was any evidence warranting submission of the question to the jury, there is enough to support the finding on appeal.” Imperio v. State, 153 Wis. 455, 459, 141 N. W. 241, 242. Under these circumstances the jury was not bound to believe the testimony of Kratz or the other...