Reiter v. Grober

• Decision Date: 08 March 1921
• Citation: 173 Wis. 493,181 N.W. 739
• Parties: REITER v. GROBER ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 493

181 N.W. 739

REITER

v.GROBER ET AL.

Supreme Court of Wisconsin.

March 8, 1921.

Appeal from Circuit Court, Milwaukee County; J. J. Gregory, Judge.

Action by Fred Reiter against Gust Grober and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Action to recover damages for injuries sustained by plaintiff in being run over by an automobile driven by Harvey Grober. William Grober, his brother, and Gust Grober, his father, the respondents were also occupants of the automobile. It appears that Gust Grober and William were guests in the automobile, having been invited by Harvey to accompany him on the trip. Much evidence was taken as to who owned the automobile, the sons Harvey and Edwin or the father. The trial court found that the sons named owned the machine and entered judgment dismissing the complaint upon the merits as to William Grober and Gust Grober; whereupon plaintiff voluntarily entered a nonsuit against the defendant Harvey Grober, and appealed from the judgment dismissing the case as to Gust and William Grober.Wm. A. Schroeder and H. B. Walmsley, both of Milwaukee, for appellant.

Bloodgood, Kemper & Bloodgood, of Milwaukee (Emmet Horan, Jr., of Milwaukee, of counsel), for respondents.

VINJE, J. (after stating the facts as above).

[1][2] We have carefully examined the evidence with reference to the ownership of the automobile with the result that we think the trial court correctly decided that issue.But, if it did not, the legal questions presented would be the same, for the evidence is undisputed that Harvey Grober was the one primarily interested in making the social visit that was made. He alone received the invitation, and he in turn invited his father and brother to accompany him. This they did as his guests. He drove the machine, and there is no evidence that either the father or the brother interfered in the least with his management of it or were called upon to do so. A man may be a guest in his own automobile. So, even if the father owned the machine, under the evidence he would have to be classed as a guest therein so far as this trip is concerned. The same is true of the brother, William. As guests are they liable to plaintiff for the negligence of Harvey, the driver? It is claimed that they are, under the doctrine of Priedeaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558. That case held that the driver of a private conveyance is the agent of a person therein to the extent that, if his negligence contributes jointly with that of a third person to an injury received by the occupant, there can be no recovery against the third person because the negligence of the driver is imputed to the occupant, thus creating contributory negligence barring recovery. It is now sought to extend this doctrine so as to make the occupant liable to third persons for the negligence of the driver. That there is a substantial difference between the rule as announced in the Priedeaux Case and the claim made by plaintiff is obvious. A person may well be content to trust his own safety to a driver, and yet not be willing to indemnify third persons who may suffer through his negligence. He may say, So far as I am concerned his negligence is my negligence, but I do not agree to become responsible to others for his negligence. To extend the doctrine to that degree would make a guest in a private conveyance an insurer of third persons against the negligence of the driver. Instead of being invested with the liabilities of a guest he would shoulder those of a master.

[3] We not only decline to so extend the rule of Priedeaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558, in so far as it imputes the negligence of the driver of a private vehicle to an occupant therein, but we take this occasion to expressly overrule it. We do so now the more readily because no litigant before the court suffers by reason of the repudiation of the doctrine. It had its inception in this state in Houfe v. Fulton, 29 Wis. 296, 9 Am. Rep. 568, decided in 1871, where Dixon, C. J., says:

“The only questions here are whether there was any want of ordinary care on the part of the plaintiff or on the part of the person with whom he was riding and who was driving the horse at the time of the injury, which also contributed to the injury, * * * and whether the defect in the bridge was the sole cause of the injury.” 29 Wis. 297, 9 Am. Rep. 568.

The court held that, since the evidence did not conclusively show such negligence on the part of the driver, a nonsuit was improperly granted. This implied that negligence of the driver would bar recovery as stated in Priedeaux v. Mineral Point, 43 Wis. 526, 28 Am. Rep. 558. But it was not until the decision in the latter case that this state became explicitly sponsor for the doctrine that an occupant in a private conveyance who has no control over the driver, who is not engaged with him in a joint undertaking other than traveling with him, and who stands in no blood, marriage, or other relation to him, has the negligence of the driver imputed to him so as to bar a recovery against a third person whose negligence contributed to the injury. The principle there announced has been steadily followed since either by a reaffirmance thereof or under the rule of stare decisis. See Otis v. Janesville, 47 Wis. 422, 2 N. W. 783;Johnson v. Superior Rapid Transit Co., 91 Wis. 233, 64 N. W. 753;Lockwood v. Belle City St. R. Co., 92 Wis. 97, 65 N. W. 866;Ritger v. Milwaukee, 99 Wis. 190, 74 N. W. 815;Olson v. Luck, 103 Wis. 33, 79 N. W. 29;Lightfoot v. Winnebago Tr. Co., 123 Wis. 479, 102 N. W. 30;Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30;Landry v. Great Northern Ry. Co., 152 Wis. 379, 140 N. W. 75;Hains v. Johnson, 154 Wis. 648, 143 N. W. 653;Sommerfield v. C., M. & St. P. R. Co., 155 Wis. 102, 143 N. W. 1032;Kuchler...