Groh v. W. O. Krahn, Inc.

• Decision Date: 09 February 1937
• Citation: 271 N.W. 374,223 Wis. 662
• Parties: GROH v. W. O. KRAHN, INC., et al.
• Court: Wisconsin Supreme Court

223 Wis. 662

271 N.W. 374

GROH

v.W. O. KRAHN, INC., et al.

Supreme Court of Wisconsin.

Feb. 9, 1937.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Judge.

Action by Lawrence Groh, Jr., against W. O. Krahn, Incorporated, and Lawrence L. Groh, wherein cross-complaint was filed by defendant Lawrence L. Groh against W. O. Krahn, Incorporated. From a judgment on a verdict in favor of plaintiff, and dismissing both the complaint and the cross-complaint against defendant W. O. Krahn, Incorporated, defendant Lawrence L. Groh appeals.-[By Editorial Staff.]

Affirmed.

Action commenced October 6, 1932, to recover damages sustained by respondent in an automobile collision which occurred on April 30, 1932, on South Seventy-Sixth street in the city of Milwaukee. Respondent was the guest of and a passenger in an automobile owned and at the time being operated by his father, the appellant Lawrence L. Groh. Appellant was driving his automobile in a northerly direction and the truck owned by the defendant W. O. Krahn, Inc., and operated by one of its employees, was being driven in a southerly direction. The plaintiff-respondent was in the front seat with his father. The street where the collision occurred is thirty feet wide-a three-lane road-the lanes being each ten feet wide and marked off by yellow lines.

The case was tried to the court and jury. The jury, by its special verdict, found the appellant Lawrence L. Groh negligent in operating his automobile with reference to, (a) Speed, (b) lookout, (c) control; and that each element of negligence was an efficient cause of plaintiff's injuries, and further found that appellant ought to have foreseen resulting injury from each of said elements of negligence. The jury found that the negligent speed on the part of the host did not persist long enough to give the guest opportunity to protest against such manner of driving. The jury exonerated the driver of the truck from any negligence. Damages were assessed as follows: (a) Medical, surgical, and hospital services, $449; (b) personal injury, pain, and suffering, $5,000; (c) loss of earnings, $240. At the time in question, plaintiff-respondent was under the age of twenty-one years and was living with his father. The court found that he had been emancipated prior to the accident.

The usual motions after verdict were made. Judgment was entered May 22, 1936, in favor of the respondent and against the appellant in the sum of $5,865.34, damages and costs, and dismissing the complaint against the defendant W. O. Krahn, Inc., and Maryland Casualty Company, its insurance carrier, with costs, and dismissing the cross-complaint of the appellant against the defendant W. O. Krahn, Inc. From the judgment so entered, the defendant Lawrence L. Groh brings this appeal.

Further material facts will be stated in the opinion.

D. J. Regan, of Milwaukee, for appellant.

Wright & Thatcher, of Milwaukee, for respondent.

Coleman & Barry, of Milwaukee, for defendants.

MARTIN, Justice.

Appellant contends that the court erred: (1) In refusing to hold, as a matter of law, that plaintiff assumed the risk of his host's negligent driving. (2) In finding that the plaintiff was emancipated at the time of the accident. (3) In refusing to hold that plaintiff could not maintain an action against his father. (4) In refusing to hold as a matter of law that the servant of the defendant W. O. Krahn, Inc., was guilty of negligence proximately causing the collision. (5) In denying the motion of the defendant Lawrence L. Groh for a new trial. Reference will be made to the errors assigned in the order stated.

In considering the first assignment of error as to the element of speed, the jury found that the negligent speed did not persist long enough to give plaintiff an opportunity to protest against such manner of driving. In this connection, it appears that the appellant's home was located six or seven blocks from the place where the collision in question occurred. The scene of the accident was in the outskirts of the city of Milwaukee in a sparsely settled neighborhood. The street in question was a three-lane, arterial highway. The jury had a view of the scene of the collision. The question of the speed limit in that area was left to the jury, the court giving proper instructions as to what constitutes a business and what constitutes a residential district, leaving it to the jury to decide which, if either, of these districts existed at the place the collision occurred. The jury made no specific finding as to what the speed limit actually was, merely finding that the appellant was negligent in respect to speed. It further appears that on the trip between appellant's home and the point of the collision, the appellant crossed a railroad track at a point approximately three blocks from the scene of the collision; that there was also a hill in the highway three or four hundred feet from the place of the collision; that appellant lessened the speed of his automobile in crossing the railroad track and in traversing the hill. It further appears that just prior to the collision and as appellant's car was descending the hill, plaintiff stooped to light a cigarette.

Whether the jury concluded that the particular area was in a business district or a residential district, the excessive speed was very limited as to time and the distance traveled. Plaintiff testified he had driven frequently with his father prior to the date in question; that he drove a car himself; that there was nothing about his father's driving on previous occasions that gave him any cause for alarm. There is on evidence as to any previous negligent driving habits of the father. Plaintiff testified that from observation on previous occasions when he had driven with his father, he would say that he was a careful driver.

[1][2] After a consideration of all the evidence, the court is of the view that the jury finding that the negligent speed did not persist long enough to give plaintiff an opportunity to protest against such manner of driving is sustained by the evidence. In Bryden v. Priem, 190 Wis. 483, 209 N.W. 703, 704, the court said: “It is claimed that because the plaintiff, D. C. Bryden, did not protest against the unlawful rate of speed at which plaintiff was driving during the quarter of a mile just prior to the accident, occupying about 25 seconds in time, he is guilty of contributory negligence as a matter of law. This is asking for an extreme, if not absurd, application of the doctrine. *** We are not prepared to say that acquiescence on the part of an invited guest in speed but slightly in excess of the rate prescribed by law, for a period of 25 seconds, constitutes contributory negligence as a matter of law.” Plaintiff's momentary inattention as to speed or lookout while lighting a cigarette would not constitute negligence as a matter of law. Cherney v. Simonis, 220 Wis. 339, 345, 265 N.W. 203, and cases cited.

[3][4] The appellant contends that the case of Young v. Nunn, Bush & Weldon Shoe Co., 212 Wis. 403, 249 N.W. 278, 280, is in point on the question of assumption of risk. The cases are clearly distinguishable. However, in the Young Case, speaking of the host-guest rule, the court said: “The doctrine of these cases has been summarized in the Knipfer Case [210 Wis. 617, 246 N.W. 328, 247 N.W. 320], and there can be no doubt of the rule that the guest must take the host, with his defects of skill and judgment and his known habits and eccentricities of driving, and in addition that the guest will be considered to acquiesce in any course of driving that has persisted long enough to give him an opportunity to protest and thus indicate dissent or disapproval of the manner of driving.” Upon the evidence in the instant case, we cannot hold as a matter of law that plaintiff assumed the risk of his host's negligent driving.

[5][6] Appellant contends that the court erred in finding that the plaintiff was emancipated at the time of the accident. The facts with respect to this issue were not in dispute. There was no request to have the issue submitted to the jury. Upon the undisputed evidence, the court made a finding that the plaintiff had been emancipated prior to the time of the collision in question. On the date of the accident, plaintiff was twenty years eleven and one-half months old; lived at his father's home, and paid for his board and room. In this connection, the father testified that his son was paying six dollars a week for his board and room; that he had been paying for his board and room since he got out of school. He further testified:

“Q. You exercised no control over his funds at all, did you? A. Not at any time.

“Q. He came and went as he pleased in your home? A. Yes sir.

“Q. You exercised no control over him in that respect? A. No.

“Q. He made no accounting to you of his earnings, other than pay you the board and his room, did he? A. No other.

“Q. He provided for himself; by that I mean he bought his own clothes out of his own money? A. Yes sir.

“Q. Under your arrangement with your son that you had with him it was your intention that he was to provide and look out for himself, was it not? A. That was his own lookout.

“Q. It was your intention that he be his own master and responsible to himself, alone, wasn't it? A. It was.”

In Prelipp v. Prelipp, 203 Wis. 488, 234 N.W. 730, 731, the court said: “‘Not only may a parent emancipate his child, so as to entitle it to receive its earnings from third persons, but “emancipation may be implied even when the minor resides a home and works for his father, from a promise on the part of the father to pay him for his services during his minority, so that the minor may maintain an action against the father even for such services.””’

“Implied emancipation may be inferred from such circumstances and conduct on the part of the parent as reasonably leads to the conclusion that he expects the child to provide...