Johnsen v. Pierce

• Decision Date: 05 November 1952
• Citation: 55 N.W.2d 394,262 Wis. 367
• Parties: JOHNSEN, v. PIERCE et al.
• Court: Wisconsin Supreme Court

Page 394

55 N.W.2d 394

262 Wis. 367

JOHNSEN, v. PIERCE et al.

Supreme Court of Wisconsin.

Nov. 5, 1952.

On December 18, 1948, the plaintiff was injured by a multiple collision between the automobile in which she was a passenger and a second automobile, and another collision immediately afterwards between the automobile in which she rode and a third car which was foallowing it. On August 25, 1949 she brought this action to recover damages for her injuries against Pierce, the driver of the third car. He impleaded as a defendant Robert Johnsen, plaintiff's son who drove the car containing plaintiff. Plaintiff then amended her complaint to charge her son with negligent driving and to demand damages from him as well as from Pierce. The trial court found as a matter of law that at the time of the collisions plaintiff and her son were engaged in a joint enterprise. The jury found that both Pierce and Robert Johnsen were causally negligent in equal degree and that plaintiff had assumed the risk of Robert's several failures to exercise due care. The court granted judgment on the verdict January 8, 1952 dismissing plaintiff's complaint against the two defendants and their insurance companies. Plaintiff's motions for judgment and a new trial were denied and this appeal ensued. Further material facts will be stated in the opinion.

Crawford, Crawford & Cirilli, Superior, Darrell MacIntyre, Madison, for appellant.

Langer & Cross, Baraboo, for defendant Walter L. Pierce, Jr.

Quarles, Spence & Quarles, Milwaukee, Arthur Wickham and Edmund W. Powell, Milwaukee, of counsel, for interpleaded defendants.

BROWN, Justice.

At the time of the collision plaintiff and her son, Robert, were making a journey from their home at Superior, Wisconsin to Biloxi, Mississippi, to bring home another of plaintiff's sons who was stationed there in the army. Their car was a Buick convertible. Mrs. Johnsen testified that she and Robert owned the automobile jointly and that it was bought with the proceeds of two automobiles which she and Robert had owned separately, plus a cash payment to which they each contributed. Robert also testified that the automobile was owned by him and his mother. None of the testimony was disputed and we think it is uncontroverted and uncontrovertible that there was joint ownership.

It is submitted that the title to the automobile was in Mrs. Johnsen's name and her counsel infers that in some way this destroys the joint ownership. The common purchase by use of the parties' separate resources and their testimony that they owned the automobile together, none of which was disputed by anyone, in our view makes the manner in which they registered ownership quite irrelevant to the issues of this action. We regard the joint ownership to be established as a matter of law.

The purpose of the journey was to fetch Bernard Johnsen, son of the plaintiff and brother of defendant Robert Johnsen, from his army post, Biloxi, to his home, Superior. It was mutually agreed upon by the plaintiff and Robert and carried out together. There was no dispute concerning any of these facts and the learned trial court was clearly correct in determining that no jury question was presented and in finding as a matter of law that the mother and son were engaged in a joint venture at the time of the accident. Archer v. Chicago, M., St. P. & P. R. Co., 1934, 215 Wis. 509, 255 N.W. 67, 95 A.L.R. 851; Paine v. Chicago & N. W. R. Co., 1935, 217 Wis. 601, 258 N.W. 846; and Emerich v. Bigsby, 1939, 231 Wis. 473, 286 N.W. 51, are all actions in which the plaintiff and the driver were joint owners of the auto in which they rode and the purpose of the trip was a social one in which they were jointly interested. In each case we held that the two owners were engaged in a joint adventure and that a mutual agency existed between them whereby the negligence of the driver was imputed to the passenger. We consider that these cases, so similar to the instant one on this proposition, are controlling.

Concerning the details of the accident it is necessary to say that when Mrs. Johnsen and her son left Superior the highway was very icy and slippery and continued so all the way to Eau Claire where they spent the night. On the second day the road near Eau Claire improved somewhat but became bad again and stretches of ice were encountered. The collisions occurred while the Johnsens were descending a hill near Baraboo. The road had been icy for about a mile and the entire hill was icy. Robert estimated his speed down the hill at approximately fifteen to twenty miles per hour. The jury found he was not negligent in this respect. As the Johnsens went down the hill a truck driven by one Garrity was coming up. Robert saw the truck skid over into his own traffic lane when it was one hundred to one hundred fifty feet away and then return to its proper position. When the truck was about twenty-five feet in front of the Johnsen car it skidded again and its rear end swung across Johnsen's path. Robert was not certain whether he applied his brakes; if he did they were useless. In the last twenty-five feet he attempted to turn off on the right shoulder of the highway but his car did not respond and he hit the truck head on and both cars stopped instantly. The jury found that Robert was guilty of negligence in the management and control of his automobile just prior to this collision and that such negligence was forty-five percent of the cause of plaintiff's injuries.

Pierce had been following the Johnsen automobile for two and one-half miles at a speed of twenty-five or thirty miles per hour, and was from one hundred fifty to two hundred feet behind it as they went down the hill. He saw the collision ahead of him and applied his brakes lightly. The road was slippery and the brakes had no appreciable effect. When Pierce was about seventy-five feet away from the Johnsen car he tried his brakes again without noticeable result. He then collided with the Johnsen car and drove it again into the Garrity truck. The jury found Pierce not negligent in respect to speed but negligent in respect to management and control and assessed this negligence at forty-five percent of the cause of plaintiff's injuries. The remaining ten percent of causal negligence was placed by the jury upon Mrs. Johnsen, herself, just prior to the first collision for failing to protest to Robert Johnsen concerning the manner in which he drove and for failure to warn him of impending danger. Garrity was killed in the accident and no one representing him was a party to this lawsuit; plaintiff did not contend that Garrity was negligent and no questions concerning causal negligence on his part were submitted to the jury.

The evidence on the management and control of the Johnsen and Pierce automobiles is such that it raises jury questions and the findings that each driver was causally negligent has support in the evidence and we cannot disturb it. The comparison of negligence is ordinarily a jury matter. Bailey v. Bach, 1950, 257 Wis. 604, 609, 44 N.W.2d 631; Cameron v. Union Automobile Ins. Co., 1933, 210 Wis. 659, 664, 246 N.W. 420, 247 N.W. 453. We find nothing in the evidence to justify interference with the jury's apportionment, which determines that Robert Johnsen's negligence as a cause of plaintiff's injuries was as great as the causal negligence of Pierce. Because of the existence of the joint venture already discussed Robert's negligence contributing to the accident is imputed to the plaintiff and becomes her own when she complains or defends in an action against a third party. Archer v. Chicago, M., St. P. & P. R. Co., supra.

Sec. 331.045, Stats. declares:

'Comparative negligence; when bars recovery. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person again whom recovery is sought, but any damages allowed shall be diminished in the proportion...