Schubring v. Weggen

• Decision Date: 07 May 1940
• Citation: 234 Wis. 517,291 N.W. 788
• Parties: SCHUBRING v. WEGGEN.
• Court: Wisconsin Supreme Court

234 Wis. 517

291 N.W. 788

SCHUBRING

v.WEGGEN.

Supreme Court of Wisconsin.

May 7, 1940.

Appeal from a judgment of the Circuit Court for Calumet County; Henry P. Hughes, Judge.

Affirmed.

Action by Bertha Schubring, administratrix of the estate of Henry W. Schubring, deceased, against Sam Weggen, to recover under the wrongful death statute (St.1939, § 331.03) and for pain and suffering of said deceased, commenced March 26, 1938. From a judgment dismissing the complaint on the merits entered April 14, 1939, the plaintiff appeals.

Plaintiff's intestate, her husband, was killed as a result of injuries received in the overturning of an automobile in which he was riding as a guest of the defendant, when the defendant, who was driving on a road making a T intersection with a crossroad, ran straight across the intersecting road into a ditch and bank at the far side of the intersecting road. The plaintiff sues to recover her damages under the death by wrongful act statute, and the damages for pain and suffering of the deceased resulting from his injuries. The case went to trial to a jury on a complaint alleging that the injuries for which recovery was sought were caused by ordinary negligence of the defendant. At the close of the plaintiff's evidence the plaintiff's counsel moved to amend his complaint to charge gross negligence on the ground that the defendant was driving the car while intoxicated. The amendment was permitted. The defendant moved for a nonsuit. The court reserved its ruling on this motion. The defendant then put in his evidence. At the close of the testimony the plaintiff moved the court to direct a verdict finding the defendant guilty of gross negligence that caused the injuries and the defendant moved for a directed verdict. The court submitted to the jury the question of compensation for the injuries involved. On return of the verdict the court granted judgment dismissing the complaint on the merits.Fox & Fox, of Chilton (Gerald F. Clifford, of Green Bay, of counsel), for appellant.

Helmuth F. Arps, of Chilton (D. E. Bonk, of Chilton, of counsel), for respondent.

FOWLER, Justice.

In this case the defendant while obviously drunk from the use of intoxicating liquor ran into a ditch and bank at the dead end of a road while driving an automobile, and his guest, the plaintiff's intestate, died from injuries sustained in the resulting overturning of the automobile. The trial court held that the guest assumed the risk of the dangers incident to the host's intoxication and dismissed the complaint.

[1]The plaintiff claims that the host in driving the car in the condition he was in was guilty of gross negligence; that contributory negligence is not a defense in cases of gross negligence; and that as assumption of risk is a species of contributory negligence the defense is untenable.

This court is committed to the doctrine that assumption of risk is not contributory negligence. Scory v. LaFave, 215 Wis. 21, 254 N.W. 643. One of the plaintiff's premises being false under that doctrine his conclusion falls with the premise.

[2][3]The plaintiff also contends that under what is said by the court in Tomasik v. Lanferman, 206 Wis. 94, 238 N.W. 857, driving while intoxicated satisfies all of the calls of gross negligence and that in cases of gross negligence the defendant is absolutely liable. If so as a general rule, this does not help the plaintiff. Not assumption of risk, but only contributory negligence was involved in that case. The plaintiff in that case was not a guest of the defendant, but another user of the highway entirely disassociated from the defendant. Our doctrine of assumption of risk in automobile collision cases does not apply except in cases of guest against host.

Plaintiff's counsel complains that the court did not find the defendant guilty of gross negligence. While it does not expressly appear that the court so found, we shall dispose of the case on the ground that the defendant as matter of law was guilty of gross negligence by driving the automobile while so intoxicated as to make his driving a menace to the public. Tomasik v. Lanferman, supra. The defendant and the decedent were neighbors. They left together in the morning of a September day and until 6:15 P. M. spent their time successively in seven taverns, drinking intoxicating liquor together in nearly if not all of them. When they left for home, only a few miles away, the defendant took a road leading directly away from instead of towards his home, and did not know he was on a dead-end road when the accident occurred. The defendant admitted on the trial that he was intoxicated at the time of the accident.

The point here involved was in effect decided against the contention of the plaintiff in the case of Markovich v. Schlafke, 230 Wis. 639, 284 N.W. 516, where the plaintiff knowing of the defendant's-his host's-intoxication continued to ride with him in an automobile he was driving after opportunity to leave the car arose. The defendant therein by reason of his intoxication fell asleep, ran off the road into a ditch and injured the plaintiff. We held as matter of law that the plaintiff assumed the risk incident to the host's intoxication and dismissed the complaint. Unless plaintiff's intestate was so drunk himself as to be unable to comprehend that the defendant was drunk the Markovich case by similarity of its facts necessarily rules the case against the plaintiff.

Plaintiff's counsel relies in support of his contention on a categorical statement in Knipfer v. Shaw, 210 Wis. 617, 621, 246 N.W. 328, 247 N.W. 320, to the effect that one of the elements necessary to constitute assumption by a guest of the risk of the hazard incident to the conditions present is knowledge and appreciation by the guest of the hazard. If the plaintiff's intestate was “dead drunk” when he last entered and thereafter remained in the automobile, he could not have appreciated the hazard incident to the host's intoxication, and the statement above referred to in Knipfer v. Shaw, supra, taking it at its full face value, would exempt him from assumption of risk. But the statement was made in a case involving ordinary negligence only, and not involving intoxication of the host, and should be limited in its application to factual situations such as were therein involved.

[4][5]It is plain common sense that one who has voluntarily become so intoxicated as to be bereft of his faculties ought not to be held exempt from the doctrine of assumption of risk when he voluntarily enters and remains in an automobile driven by a drunken driver. One who has become so bereft ought to be held to the same degree of responsibility for protecting himself that he would be subject to if he were not intoxicated. Voluntary intoxication does not relieve one driving an automobile from his responsibility to care for others. No more should it relieve one voluntarily riding in an automobile from responsibility to care for himself. Voluntary intoxication in such case does not exempt...