Hensel v. Hensel Yellow Cab Co.

• Decision Date: 01 January 1932
• Citation: 245 N.W. 159,209 Wis. 489
• Parties: HENSEL v. HENSEL YELLOW CAB CO., INC.
• Court: Wisconsin Supreme Court

209 Wis. 489

245 N.W. 159

HENSEL

v.HENSEL YELLOW CAB CO., INC.

Supreme Court of Wisconsin.

Nov. 12, 1932.

Dissenting Opinions Nov. 14, 19, 1932.

Appeal from a judgment of the Circuit Court for Sheboygan County; Edward Voigt, Circuit Judge.

Action by Emily Hensel against the Hensel Yellow Cab Company, Incorporated. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Affirmed.

Action begun May 5, 1931; judgment entered December 9, 1931. Automobile accident. The defendant, Hensel Yellow Cab Company, is a family corporation. There are three stockholders: Fred Hensel, who is president of the corporation; Fred Hensel's brother, Arthur Hensel, who is vice president of the corporation; and Kurt Weber, brother-in-law of Fred Hensel, who is the secretary of the corporation. There are no other stockholders. The corporation operated large trucks equipped as moving vans. The company had a contract to transport certain goods from Sheboygan, Wis., to the city of Philadelphia, Pa. One of the trucks was driven by Fred Hensel and an employee named Bernard Renzelman. Some time prior to the commencement of the trip, Arthur Hensel suggested to the plaintiff, Emily Hensel, the wife of Fred Hensel, that she go with her husband upon the trip. Her husband also made the suggestion and invited her to go. After the trucks were loaded ready for departure and were standing in front of the company's office, the plaintiff asked Arthur to procure a pillow for her for use on the trip, which he did.

On the morning of September 1, 1930, the truck driven by Fred Hensel reached the city limits of East Liverpool, Ohio, and was at that time being driven by Fred. As they entered the city, they approached the top of a long hill. At that time the plaintiff was seated on the left of her husband, who was driving, and Renzelman was seated on the right of Fred. Observing that the hill was steep, Fred shifted from fourth to third speed and proceeded down the hill. The truck commenced to gain headway, and Fred attempted to shift from third to second speed but was unable to engage the clutch. The truck continued to gain headway, when Fred driving with one hand grabbed the emergency brake with the other, and at the same time Renzelman grabbed the emergency brake in an effort to stop or slow down the truck. They were unable to accomplish this. The truck continued to gain headway and at a point variously estimated from two or four blocks on the way down the hill, they were unable to make a sharp turn in the street, the truck struck a curb, was overturned, doing considerable damage to a house and injuring the plaintiff.

This action was begun by the plaintiff to recover damages from the corporation on account of the injuries sustained by her in the accident. The answer admitted the formal allegations of the complaint, the relationship of the parties, and that the accident occurred in the city of East Liverpool, Ohio, and set up as a separate defense: “That the plaintiff was a guest in said truck and that at the time of the accident plaintiff and her husband, Fred Hensel, the driver of said truck, were engaged in a personal arrangement to give plaintiff a ride upon said truck from Sheboygan to the point of destination; that the said Fred Hensel, in permitting the plaintiff to ride as a guest upon said truck up to and at the time of the collision acted outside of the due course and scope of his employment by and for this defendant; that the said Fred Hensel violated his duties as agent or servant of this defendant in carrying the plaintiff upon said truck.”

The issues were submitted to the jury upon a special verdict, and the jury found: First, that Fred Hensel was negligent in the operation of the truck with respect to (a) lookout; (b) control and management, and that the negligence of Fred Hensel in both respects was a cause of plaintiff's injuries.

Upon the trial the court offered to submit questions respecting contributory negligence of the plaintiff and assumption of risk on her part. Defendant's counsel declined to acquiesce in this suggestion and claimed that the contentions of the defendant in that respect were matters of law for the court. The court found as a matter of fact that the plaintiff was not negligent and did not assume the risk of injury; that any protest on her part would have been unavailing, and for that reasonher failure to protest could not have been a cause of her injuries.

From the judgment entered accordingly, the defendant appeals.

OWEN, FAIRCHILD, and NELSON, JJ., dissenting.

Bender, Trump, McIntyre & Freeman, of Milwaukee, for appellant.

Buchen & Schlichting, of Sheboygan, for respondent.

ROSENBERRY, C. J.

The first contention made by the defendant is that there is no evidence to justify the jury's finding of negligence with respect to lookout, management, and control. In its instructions to the jury, the court made no reference to the fact that the plaintiff was a guest either of her husband or of the company. The instructions given in regard to the first question of the special verdict relate to ordinary negligence and are in no way qualified. The defendant requested no instructions upon these points, and it is apparent from the record counsel considered and so informed the court that the contributory negligence of the plaintiff and assumption of risk by her were matters of law for the court. This is not a satisfactory way to dispose of questions of this kind when properly raised upon the trial.

[1] Since Cleary v. Eckhart (1926) 191 Wis. 114, 210 N. W. 267, 51 A. L. R. 576, this court has repeatedly emphasized the fact that the duty of a host to his guest is materially different than the duty of one to a third person. It is well established that a guest must accept the premises of his host as he finds them, it being the duty of the host to warn the guest of lurking dangers, so a guest accepts the automobile of his host as it is unless there are defects known to the host not observable by the guest in the exercise of ordinary care; in other words, unless there are lurking dangers. O'Shea v. Lavoy (1921) 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008.

In Cleary v. Eckhart, supra, it was held that the fundamental relation existing between host and guest is that of licensor and licensee and that the duty which the host owes to his guest is that of a licensor to a licensee.

In Poneitowcki v. Harres, 200 Wis. 504, 228 N. W. 126, 129, the situation was very similar to that disclosed by the record in this case. The court there said:

“But, even though the verdict was not so framed as to attract the attention of the jury to the qualified care which the relations obtaining imposed upon the appellant [host], it may or may not constitute prejudicial error as submitted to the jury. They were asked to find whether the appellant failed to exercise ordinary care under the circumstances, and no distinction was made between the degree of care which he [host] owed to the respondent [guest] and to all the world, and especially other users of the highway. However, if there be no difference, in the instant case, in the duty which the appellant owed to the respondent, and the duty which he owed to other users of the highway, then the form of the verdict should not be deemed prejudicial error.

While the guest cannot demand of the host a higher degree of skill and experience than he actually possesses, in the management and control of the automobile under special and peculiar circumstances, even though they do not amount to emergencies, nevertheless there are certain duties imposed upon the drivers of automobiles, the abilities to perform which do not depend upon experience or acquired skill. Among these is the duty to maintain a reasonable speed, obey the law of the road, keep a proper lookout, etc. There are duties which are required to be observed for the safety of every one, those within as well as those without the automobile, and failure to perform them may result in liability, in the absence of acquiescence or contributory negligence on the part of the guest. The driver of an automobile, who maintains an excessive or reckless speed, who fails to maintain a lookout or to observe the laws of the road, plainly increases the dangers which the guest assumed upon entering the automobile and adds new ones, and there manifestly is no difference between the degree of care he is required to use in these respects for the safety of his guests and for the safety of other persons.”

In that case it was held that the evidence being sufficient to sustain the findings with respect to excessive speed and the failure to maintain a proper lookout, the verdict sustained the judgment.

[2][3] In this case if we assume that the failure of Fred Hensel properly to control and manage the truck was due to a lack of skill on his part and not to inadvertence and that that was a hazard assumed by the plaintiff (see Harter v. Dickman [Wis.] 245 N. W. 157, decided November 9, 1932), there still remains the finding that he was negligent with respect to lookout, as to which he owed the plaintiff the same duty as he owed others, in the absence of evidence that he was habitually negligent as to lookout to the knowledge of the plaintiff and in the absence of any conduct on her part inducing or acquiescing in his conduct as to lookout at the immediate time. This brings us to the question of whether or not there is credible evidence which sustains the jury's finding of failure to exercise ordinary care in that respect. There is very little dispute upon the facts. Differences arise, however, with respect to the inferences which may properly be drawn from those facts. Under the well-established rule if the minds of reasonable men may come to different conclusions with respect to these inferences,the question is for the jury. What Fred Hensel saw when he reached the top of the hill in question is disclosed in two ways: (1) By what he said he saw and (2) by...