McCauley v. International Trading Co.

• Citation: 66 N.W.2d 633,268 Wis. 62
• Parties: Dorothy Miller McCAULEY, Plaintiff and Respondent, v. INTERNATIONAL TRADING CO., a Wis. Corporation, Appellant, Clara F. Miller, as Ex'x of the Estate of Edward F. Miller, Deceased, et al., Defendants and Respondents. Clara F. MILLER, as Ex'x of the Estate of Edward F. Miller, Deceased, et al., Respondents, v. INTERNATIONAL TRADING CO., Appellant.
• Decision Date: 09 November 1954
• Court: Wisconsin Supreme Court

Page 633

66 N.W.2d 633

268 Wis. 62

Dorothy Miller McCAULEY, Plaintiff and Respondent, v. INTERNATIONAL TRADING CO., a Wis. Corporation, Appellant, Clara F. Miller, as Ex'x of the Estate of Edward F. Miller, Deceased, et al., Defendants and Respondents.

Clara F. MILLER, as Ex'x of the Estate of Edward F. Miller, Deceased, et al., Respondents, v. INTERNATIONAL TRADING CO., Appellant.

Supreme Court of Wisconsin.

Nov. 9, 1954.

Kivett & Kasdorf, Milwaukee, A. W. Kivett and Stephen C. deVries, Milwaukee, of counsel, for appellant.

George H. Moeller, Milwaukee, for Dorothy McCauley.

Charles C. Erasmus, Milwaukee, for Clara F. Miller.

Torphy & Torphy, Thomas E. Torphy, and Bernard J. Luettgen, Milwaukee, for other respondents.

BROWN, Justice.

International Trading Co., hereinafter sometimes called 'the corporation', has a country estate and as a part of its facilities owns a number of saddle horses. Waukesha County Trunk Highway 'K', carrying considerable traffic, runs between the horsebarn and an unfenced field belonging to the corporation. The horses require exercise during the times when they are not ridden sufficiently by the corporation's patrons and it was the duty of a corporation employee named Werseen to exercise them in such periods. The corporation manager authorized Werseen to allow Barbara Hochmuth, an 11 year old girl who lives nearby, to ride one of the smaller horses named Pat so that it might have exercise and she had ridden that horse several times.

On May 2, 1952, Barbara came to the barn after school and Werseen saddled Pat for her, using an adult-sized western saddle on which she had ridden before. He saddled another horse for himself and they rode together across highway 'K', into the field, from which a crop of oats had been harvested, and then through other areas to Barbara's home, after which they returned by the same route. They came back to the oat field at about 5:30 p. m. and there Barbara and Werseen galloped their horses in different directions so that they became somewhat separated, with Werseen facing in such a direction that Barbara was not in his line of sight. At that time Barbara lost her balance and, after clinging to her horse for a short time, fell off. She called out as she did so. Werseen turned his head, saw her falling and saw her horse running toward its barn. He made no attempt to catch or stop Pat and the testimony was that any effort to do so would have been useless under the circumstances. Instead, he rode up to Barbara to see if she was hurt. Meanwhile, Pat ran in the field rather close and parallel to highway 'K' for a time and then, suddenly changing direction to cross the road, ran in front of an automobile driven by Dr. Edward F. Miller and also occupied by his wife, Clara, and his daughter, Dorothy. Dr. Miller and the passengers in the car had seen the riderless horse running in the field but Dr. Millar was unprepared for the horse coming into the highway close ahead of him. He struck the animal and the collision caused personal injuries to him and to the two women. All three brought actions against the corporation to recover their damages, alleged to be due to the negligence of the corporation in permitting its horse to be at large in the highway. The actions of the two women joined Dr. Miller as a defendant alleging causal negligence on his part in his operation of the automobile. The actions were consolidated for trial and for these appeals. Dr. Miller died before trial was had, from causes unconnected with the accident, and his action was continued by his executrix. Dr. Miller's insurance carrier was made a party to the suits against him. For the sake of brevity and simplicity this discussion of the issues will ignore the insurer and the death of Dr. Miller, since no change in material facts or principles of law will be caused by doing so.

The consolidation of the actions of the three plaintiffs resulted in a special verdict of twenty principle questions with numerous subdivisions, only a few of which apply to all of the actions and the verdict must be analyzed separately for each action. Mrs. Miller's individual claim was settled after trial and the questions applicable only to her have been eliminated.

Dorothy Miller, now Dorothy Miller McCauley, sued Dr. Miller (her host) and the International Trading Co., alleging that the negligence of Dr. Miller in operating the automobile and the negligence of the corporation in failing to keep its horse out of the highway caused the collision and the injuries which she sustained. In a special verdict the jury found Dr. Miller guilty of causal negligence in various respects with consequent damage to the plaintiff but it also found that 'such negligence (was) * * * the result of lack of skill or judgment on his part.' Being of the opinion that this answer established Dorothy's assumption of the risk of this accident and therefore that, as to her, her father's negligence was not actionable, the trial court entered judgment February 3, 1954, dismissing the complaint as against Dr. Miller. The appeal from that judgment is not taken by Dorothy, the plaintiff, but by International Trading Co., Dr. Miller's codefendant.

The corporation did not serve on Dr. Miller or his insurance carrier any pleading demanding contribution on account of any judgment which the corporation might be compelled to pay, nor did it make any such demand or assert any right to contribution at any time during the trial or afterward. Even on the appeal it does not argue that it has a right to contribution. Under the circumstances, the corporation is not entitled to a judgment of contribution against Dr. Miller. Haase v. Employers Mutual Liability Ins. Co., 1947, 250 Wis. 422, 27 N.W.2d 468. Having demanded no relief against its codefendant and being entitled to none, the corporation is not aggrieved by the judgment which discharged that defendant from liability to the plaintiff. A party which is not aggrieved may not maintain an appeal. Hammond-Chandler Lumber Co. v. Industrial Comm., 1916, 163 Wis. 596, 158 N.W. 292; Larson v. Oisefos, 1903, 118 Wis. 368, 95 N.W. 399. The plaintiff, who is aggrieved and who could appeal if she chose to do so, has not sought review. The judgment of February 3, 1954 must be affirmed.

On March 18, 1954, the court entered judgment in favor of Dorothy Miller McCauley and against International Trading Co. for $3,163.21 damages and costs, based upon the special verdict, as modified by the court in several respects, and upon an election by Dorothy to accept judgment in that amount, which was a reduction of the damages found by a majority of jurors.

The special verdict found that appellant was 'negligent in failing to have the horse off the public highway at the time of the collision' and that such negligence was causal. The corporation submits that there is no evidence by which such a finding of negligence may be supported. It is true, as the corporation asserts, that the horse was gentle and that Barbara had ridden him before without mishap. At those times she had used the same western saddle, which had stirrups which Barbara testified were too large and caused her to slip. (The words 'too large' were objected to as a conclusion and the court sustained the objection but there was no motion to strike them or to direct the jury to disregard them and no such instruction was given.) Werseen testified that he always went in attendance when children rode the horses. The jury could reasonably draw the inference that such attendance was in anticipation of some mishap which he was expected to prevent or minimize and certainly the most probable mishaps are that a horse would get out of a child's control either by running away or by the child falling off. It was in evidence that Werseen had galloped away from Barbara and at the time of her fall was too far distant to be of help in controlling her horse, and that upon getting loose a horse's propensity is to return to its barn, which in this case was across a travelled county highway. The evidence also shows that Barbara was permitted by the corporation to exercise the horse in an unfenced field with nothing to prevent its getting into the highway if she lost control and the attendant was not near enough at hand to take over.

Appellant relies strongly on Fox v. Koehnig, 1926, 190 Wis. 528, 209 N.W. 708, 49 A.L.R. 903, which deals with a horse which got out of its barnyard in the nighttime and ran into plaintiff's automobile. In that case we mentioned what is still rule that there is no statute which prohibits livestock (with some immaterial exceptions) from being at large upon the highway. Therefore, we said, liability could not be predicated upon an unlawful presence of the horse in the road but must rest on ordinary principles of negligence. The jury found the owner of the horse negligent in failing to maintain a sufficiently secure barnyard fence and found such negligence to be a proximate cause of plaintiff's damages. We reversed a judgment for plaintiff, saying that in order to be a proximate cause the negligence complained of must be of such nature that an ordinarily careful and...