McConville v. State Farm Mut. Auto. Ins. Co.

Citation113 N.W.2d 14,15 Wis.2d 374
PartiesFrancis McCONVILLE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a foreign corporation, et al., Respondents.
Decision Date15 January 1962
CourtUnited States State Supreme Court of Wisconsin

Action by Francis McConville against Adeline Licht and her insurer for damages for personal injury sustained December 22, 1959. McConville was a guest in the automobile driven by Mrs. Licht. Theodore Peterson, the driver of another car, was impleaded as a party defendant.

County Highway O runs east and west. A town road, running north from Cadott, intersects O and ends there, one mile north of the village. Just before reaching O, the town road separates into two branches, making a Y. One branch would be used by cars turning from the town road toward the east on O and by cars coming west on O and turning south on the town road. The other branch would be used by cars turning from the town road toward the west on O and by cars coming east on O and turning south on the town road.

Mrs. Licht was heading north on the town road, intending to turn toward the east. Peterson was heading east on O and turned south on the westerly branch of the Y in the town road. In some fashion, Mrs. Licht followed the westerly branch of the Y and collided with Peterson's car. There was snow along the town road to a depth of three to five inches. The snow was packed down in the central-traveled portion, and was somewhat slippery.

The collision occurred about 9:00 p. m. Mrs. Licht had gone to a tavern in Cadott about 3:30 p. m. had stayed into the evening and had some drinks. She and some of the other people in the tavern were dancing. McConville had gone to the tavern about 4:45 p. m. and had some drinks, some of them with Mrs. Licht. He was a friend of Mr. and Mrs. Licht and agreed to accompany Mrs. Licht to a Christmas party at a school north and east of Cadott. The collision occurred on that trip.

The jury found Mrs. Licht causally negligent as to management and control and position on the highway; that McConville was causally negligent as to lookout; that Peterson was not negligent. It apportioned 85 per cent of the negligence to Mrs. Licht and 15 per cent to McConville, but found that McConville assumed the risk with respect to management and control and position on the highway. Judgment dismissing the complaint and the cross complaint against Peterson for contribution was entered March 6, 1961. McConville appealed.

Other material facts will be referred to in the opinion.

Frank E. Huettner, Cadott, for appellant.

Stafford, Pfiffner & Stafford, Chippewa Falls, for respondent.

FAIRCHILD, Justice.

The verdict in the instant case was rendered December 2, 1960. No objection was made to the submission of the issue of assumption of risk. On January 10, 1961, our decision and concurring opinions were announced in Baird v. Cornelius. 1 Two justices stated that acts of implied acquiescence of an automobile guest in the negligent acts of the host-driver, which evince a disregard by the guest for his safety, constitute negligence and properly should be subject to the comparative negligence statute. Three other justices indicated that the question of assumption of risk should be reexamined.

Thereafter in the instant case motions after verdict, including a motion for a new trial in the interest of justice, were made by plaintiff, relying in part on the Baird opinions, and denied by the circuit court. Plaintiff claims here that he is entitled to a new trial on several grounds, but argues principally that he is entitled to a new trial in which the issue with respect to plaintiff's willingness to ride as Mrs. Licht's guest would be submitted in terms of negligence and not assumption of risk.

When certain relationships, founded on consent, exist between an actor and an injured party, the law has declined to impose liability on the actor for conduct which would constitute negligence but for the implication that the injured party has assumed the risk of the particular conduct. The implication has arisen from the injured party's willingness to proceed in the face of a hazard to his safety, known and appreciated by him. One of the relationships in which the doctrine of assumption of risk has been applied is that between host and guest in an automobile. 2

Whether the principle of assumption of risk be explained in terms of consent to receiving harm (actually consent only to being exposed to danger which one hopes will not materialize in harm) or in terms of a limitation on the duty of a host to a guest, the principle reflects a policy judgment that an automobile host should not be held to as high a standard of responsibility for injury to his guest as for injury to one not in that relationship. The principle represents an evaluation of the relationship itself, including a concept that the guest is in the automobile as a matter of grace, not right, that he is free to ride or not ride, and must protest or else be silent, at his own risk, and that the host as a benefactor of the guest merits protection from liability to one to whom the host has extended a favor.

This evaluation, this policy judgment, and these concepts do not appear sufficiently valid under present-day customs and community attitude toward the use of automobiles.

We therefore adopt the following rules of law: (1) The driver of an automobile owes his guest the same duty of ordinary care that he owes to others; (2) A guest's assumption of risk, heretofore implied from his willingness to proceed in the face of a known hazard is no longer a defense separate from contributory negligence; (3) If a guest's exposure of himself to a particular hazard be unreasonable and a failure to exercise ordinary care for his own safety, such conduct is negligence, and is subject to the comparative negligence statute.

There may be circumstances where a guest's willingness to proceed in the face of a known hazard for which the host is responsible is not unreasonable. In a particular situation the utility of riding with the host and the inadequacy of any alternative course may both be so obvious that the guest's acquiescence might constitute assumption of risk as heretofore existing, but not a lack of ordinary care. In such circumstances the guest's acquiescence will constitute no defense under the rule we are now adopting. We make the policy judgment, however, that much more injustice will be avoided in the instances where acquiescence ceases to raise a complete defense and becomes a matter for comparison by the trier of the fact than will be created in the instances where the acquiescence is not unreasonable and therefore raises no defense at all under the principles of contributory and comparative negligence. Under the new rule, the trier of the fact may determine that a guest failed to exercise ordinary care in riding with a particular host with knowledge of the host's deficiencies in driving, but may also evaluate such failure in the light of all the circumstances and then compare it with the failures of the host which contribute to the injury.

In O'Shea v. Lavoy, 3 one of the earliest Wisconsin cases to apply the doctrine of assumption of risk in automobile hostguest cases, we held that the legal relation of licensor-licensee existed between the host and the guest. The court said, at page 462, 185 N.W. at page 528:

'* * * According to those rules, the guest accepts the premises of his host as he finds them, subject only to the limitation that the licensor must not set a trap or be guilty of active negligence which contributed to the injury. Here the accident happened, as said before, because of a broken spring, and the question is: Did that constitute a trap within the meaning of the rule? That is the only basis upon which liability can be predicated. A 'trap,' within the meaning of this rule as we understand it, is a hidden danger lurking upon the premises which may be avoided if known. Hence it is the duty of the host to advise his guest of its presence so that the guest may enjoy the premises in a security equal to that enjoyed by the host. The guest has no right to a greater security than that enjoyed by the host or other members of his family. The host simply places the premises which he has to offer at the disposal and enjoyment of his guest upon equal terms of security.'

The court also stated, at page 459, 185 N.W. at page 526:

'* * * It is an act of kindness and consideration for the owner of a car to lend its comfort and pleasure through an invitation extended to his less fortunate neighbor for a ride in the country, to join a picnic party, or to enjoy an evening at the theater in the nearby city. This is a species of hospitality which should be encouraged rather than discouraged, and the law should not couple with this friendly act a duty which makes its exercise an unreasonable hazard * * *.'

In Cleary v. Eckart, 4 the doctrine of assumption of risk was expanded to include the skill and judgment of the driver. We held that the guest has no right to demand of the host a degree of skill which the host is unable to exercise. This perforce was a holding that the host owes no duty to the guest to exercise more skill than he possesses. In that opinion we noted, at page 119, 210 N.W. at page 269:

'* * * It would be interesting to inquire whether under such circumstances the guest should not be held to have accepted the risk incident to the situation, but we think the case may well be disposed of on the ground that plaintiff accepted such hospitality as the host had to offer * * *.'

This doctrine was further expanded in Olson v. Hermansen, 5 which held the guest assumes the dangers incident to the known habits of the driver, as well as the driver's proficiency.

In Howe v. Corey, 6 decided prior to O'Shea v. Lavoy, supra, footnote 3, we held:

'* * * To permit Corey to proceed in this reckless manner without remonstrance in the light of plaintiff's knowledge of the...

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