Schimke by Menn v. Mutual Auto. Ins. Co. of Town of Herman

• Decision Date: 04 May 1954
• Parties: SCHIMKE by MENN et al. v. MUTUAL AUTO, INS. CO. OF TOWN OF HERMAN.
• Court: Wisconsin Supreme Court

Page 195

64 N.W.2d 195

266 Wis. 517

SCHIMKE by MENN et al. v. MUTUAL AUTO, INS. CO. OF TOWN OF HERMAN.

Supreme Court of Wisconsin.

May 4, 1954.

Action by plaintiffs Lloyd Schimke by his guardian ad litem and Ferdinand Schimke, his father, against defendant Mutual Automobile Insurance Company of the Town of Herman, for damages arising out of personal injuries received by the minor plaintiff in an accident occurring while he was a passenger in his father's automobile upon which defendant had issued a policy of liability insurance. The car was being driven by one Franklin Vandergage with the permission of the minor plaintiff. At the close of plaintiffs' case defendant moved for a non-suit, upon which motion the court reserved its decision. The jury found that Franklin Vandergate was causally negligent as to management and control and assessed the damages of Lloyd Schimke at $2,950; the court answered questions respecting the damages sustained by the plaintiff father. Upon motions after verdict the court denied all of defendant's motions and entered judgments for the plaintiffs on the verdict. From those judgments, defendant appeals.

The automobile involved was purchased by Ferdinand Schimke in 1949, his son Lloyd contributing to the purchase price. Title was put in Ferdinand Schimke's name and he obtained insurance for the car from the defendant company.

This accident happened on the hight of September 28, 1950. Lloyd, a high school student, played on the school football team which was scheduled to play a night game at Waupaca. At about 5:00 p. m. he drove the car to Manawa from his home at Symco and, since he was required to travel to Waupaca with the team on the bus, he made arrangements with five of his school friends, among them Franklin Vandergate, to drive the car to Waupaca for the game. After the game Lloyd joined the other boys on the trip back in the car, Vandergate driving.

On Highway 54 several miles from Manawa they met a car on a curve and Vandergate turned the automobile to the right so that the right wheels dropped off the concrete pavement and in attempting to bring it back on the pavement he lost control of the car, it turned over and the plaintiff sustained the injuries complained of.

The only negligence question submitted to the jury in the special verdict was that of management and control:

'Question 1. At and immediately prior to the accident was the driver of the Ford automobile, Franklin Vandergate, negligent in respect to the management and control of said automobile? Answer: Yes.

'Question 2. If you answer question 1 'yes', then answer this question: Was such negligence a cause of the accident and resulting injuries and damages to the plaintiffs? Answer: Yes.'

Lehner, Lehner & Behling and Adolph P. Lehner, Oconto Falls, for appellant.

J. Kyle Anderson, Waupaca, Benton, Bosser, Becker & Fulton, Appleton, for respondents.

MARTIN, Justice.

The first question on this appeal is whether the verdict is sustained by the evidence.

The only testimony with regard to how the accident happened is that of Lloyd Schimke:

'There is a little bend in the road. It seems we met a car and two wheels dropped off the pavement, the right two wheels, and he was going to bring it back in the road when we hit a bump and it started zig-zagging and that is all I remember.'

He further testified:

'Q. Did he continue on the shoulder for some distance? A. No. As the car went past he was bringing it back.'

Defendant contends that since there is no explanation why the car started to zig-zag, the finding of negligence is pure speculation. It cites Baars v. Benda, 1945, 249 Wis. 65, 23 N.W.2d 477, where a car suddenly left the highway and after the accident the steering apparatus was found to be broken. In that case it was held that there being no evidence of negligence and no evidence as to when the steering wheel was broken, the jury could only speculate whether the accident was caused by the failure of the steering apparatus or by negligent conduct of the driver. Where the evidence is as consistent with the theory that the accident may be ascribed to a cause not actionable as to a cause that is actionable, the jury may not be allowed to guess where the truth lies. In that case the court also referred to Klein v. Beeten, 1919, 169 Wis. 385, 172 N.W. 736, 5 A.L.R. 1237, where there was a possibility that the accident might have been caused by the blowout of a tire.

Such cases are not authority for defendant's contention. There has been no showing that any nonactionable cause is present in the circumstances of this accident. No speculation is necessary for the jury to infer that Vandergate was causally negligent. There is no evidence that he was blinded by the lights of the oncoming car nor that it crowded him off the pavement; nor is there evidence that any defect existed in the car which might have caused it to drop off the pavement or zig-zag out of control. From the fact that the car dropped off the concrete, hit a bump as Vandergate tried to bring it back and then zig-zagged and overturned, the jury could reasonably infer that the accident was caused by the driver's negligent management and control.

The holding of Wisconsin Telephone Co. v. Matson, 1950, 256 Wis. 304, 311,...