Maurer v. Fesing
| Decision Date | 13 February 1940 |
| Citation | 233 Wis. 565,290 N.W. 191 |
| Parties | MAURER et al. v. FESING et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Sheboygan County; Henry A. Detling, Judge.
Affirmed.
Action brought by Frank Maurer and his daughter, Virginia Maurer, a minor, against Henry Fesing and the Mutual Automobile Insurance Company, etc., to recover damages sustained by the plaintiffs as the result of injury to Virginia Maurer caused by alleged negligence of the defendant Fesing in operating an automobile in which she was riding as a guest. The insurance company had issued an automobile liability insurance policy to Oswald Trempe the owner of the automobile, and plaintiffs alleged that by reason of the coverage afforded thereby it extended to damages caused by the operating of the automobile by Fesing with the consent of the owner. In their answers to the complaint the defendants denied that the injury was caused by the negligence of Fesing, and alleged that if he was negligent as charged in the complaint Virginia Maurer assumed the risk of injury by reason thereof. In addition the insurer denied that the policy covered Fesing as the driver of the automobile. Upon a trial by jury the court found that the injury was caused by the negligence of Fesing in respect to lookout and that he was operating the automobile with the consent of the owner and therefore was within the coverage of the policy. The jury assessed the amount of the daughter's damages, and the parties agreed upon the amount of the father's damages. Judgment was entered for the recovery of those amounts by the respective plaintiffs. Defendants appealed from that judgment.Jos. H. Peters and Purh & Van de Water, all of Sheboygan, for appellants.
Bassuener, Humke & Poole, of Sheboygan (Paul L. Axel, of Sheboygan, of counsel), for respondents.
The accident in question occurred while the plaintiff Virginia Maurer was riding as a guest in an automobile operated by the defendant Henry Fesing. The car was owned by Oswald Trempe and was being used with his knowledge and express consent by his son Lester and the latter's friend Fesing for an evening pleasure drive with the plaintiff Virginia Maurer and another girl friend. Lester operated the car from Sheboygan to Sheboygan Falls, and then Fesing drove it to Plymouth where they stayed an hour at a tavern. Upon leaving Fesing drove again until the accident, and Virginia sat in the front, seat. It rained during the trip to Plymouth, and upon leaving there was a fog which was not dense, but sufficient to prevent seeing as far along the road as they could in good weather. Fesing drove at the rate of forty-five to fifty miles per hour, which had been their speed during the trip. The accident happened at a sharp curve in a black top roadway of average width when the car ran off the roadway, across a ditch and up the bank on the other side, and stopped in a field, after going fifty feet from where Fesing first noticed the curve. He admitted that he failed to see the curve in time to enable him to negotiate the turn. The court directed findings in a special verdict that negligence of Fesing in operating the automobile in respect to lookout was a cause of the accident, and only submitted the assessment of Virginia's damages to the jury. The court denied defendants' requests that the court either submit questions to the jury for a special verdict as to whether there was causal negligence on the part of the Fesing in respect to the speed at which he operated the car, and whether the risk of injury by reason of such negligence was assumed by Virginia Maurer, or that the court answer such questions affirmatively. The parties stipulated that the question as to whether the policy in question covered damages caused by Fesing's negligence was a question of law which the court might decide after verdict. Upon motions after verdict the court found that Fesing was operating the car with the consent of the owner Oswald Trempe and that therefore the coverage of the policy inured to the benefit of Fesing. Judgment was entered for plaintiffs' recovery of their damages from Fesing and the insurer.
[1][2][3]On appeal Fesing and the insurer contend that the evidence establishes as a matter of law that Fesing was guilty of causal...
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