Schweidler v. Caruso

• Decision Date: 05 April 1955
• Parties: Richard SCHWEIDLER, Plaintiff, v. Sam F. CARUSO et al., Appellants, John W. Earl, Respondent.
• Court: Wisconsin Supreme Court

Page 611

69 N.W.2d 611

269 Wis. 438

Richard SCHWEIDLER, Plaintiff, v. Sam F. CARUSO et al., Appellants, John W. Earl, Respondent.

Supreme Court of Wisconsin.

April 5, 1955.

Jeffris, Mouat, Oestreich, Wood & Cunningham, Harry F. Knipp, Louis D. Gage, Jr., Janesville, for appellants.

Toebaas, Hart, Kraege & Jackman, Madison, for respondent.

STEINLE, Justice.

This controversy results from a collision between an Oldsmobile passenger automobile driven by John W. Earl and owned by Richard Schweidler, who was riding in it at the time, and a 1 1/2 ton Dodge delivery truck driven by Sam F. Caruso, on a north-south, straight, stretch of roadway on Highway 51, about a mile out of Edgerton toward Madison on the afternoon of September 6, 1951. The road was of concrete, 20 feet in width, and shoulders six to seven and a half feet wide extended from the pavement. Both vehicles were traveling in a northerly direction. The truck was ahead of the passenger car. Earl intended to pass the truck to its left. The collision occurred as the driver of the truck made a left turn toward a private driveway.

Schweidler, 66 years of age, a painting and decorating contractor, of Hinsdale, Illinois and Earl, 50 years old, operator of a Chevrolet Garage there, were on a trip to Rainy Lake in Canada where they intended to go fishing. They were a part of a group of businessmen from their own locality that had planned to stay at a camp there. The others were to follow on the next day. The trip was purely for pleasure. Neither transacted or intended to transact any business on the trip. There had been no discussion or agreement prior to the start of the trip or thereafter as to payment of expenses. At the trial Schweidler testified that he did not anticipate that Earl would pay a part of the expense of operating the car, and Earl testified, that he expected that the expenses would be on a 'dutch treat' basis.

Before starting from Hinsdale at about 1:30 p. m. (daylight saving time), no plans had been made regarding the driving. After commencing the trip there was some discussion about driving, and they decided to 'change off.' There was no agreement as to what part of the driving either would do. Earl was more familiar with the roads than was Schweidler. Schweidler drove the car as far as Lake Geneva or Janesville (there is a variance in the testimony as to the exact place), when Earl suggested that he drive. They exchanged places in the front seat, and Earl drove the car until the time of the collision. Schweidler made no suggestion as to how Earl was to drive the car, and gave him no directions or instructions. After Earl took over the driving, Schweidler 'relaxed and took it easy,' and dozed part of the time, and had been dozing for a while until a few moments before the collision. Earl drove at the same rate of speed that Schweidler had,--about 60 miles per hour. The speed was satisfactory to Schweidler. He was not worried about Earl's driving. He made no protest and saw no occasion to do so. There was no definite destination that was intended to be reached that day.

The truck driven by Caruso was equipped with rear view mirrors, one on each side (fastened to the door near the windshield). Caruso testified that although the cab of the truck had a rear window, one could not see through it behind the truck because of the presence of acetylene tanks as part of the load on the truck.

With reference to other particulars, Caruso testified that he was proceeding at a speed of about 25 to 30 miles per hour after leaving Edgerton. The road was clear. He passed no vehicles. A school bus left Edgerton at about the same time he did. It followed behind him at a distance of about 50 to 100 feet. He observed it through the rear view mirror. While the presence of the bus obstructed his view of traffic behind and in the lane of the bus, he had a view all the way back in the left (west) lane of traffic. When about 300 feet from the driveway entrance of Midway Welding Company (where he intended to stop) he looked back and saw only the bus. When a little more than 150 feet from the driveway of the welding company he looked again and saw only the bus. When about 25 to 30 feet south of the entrance to the driveway (which driveway is about 10 to 12 feet wide) he glanced in the rear view mirror, saw the bus behind him at a distance of 50 to 75 feet, and made a 'pretty sharp' turn from the lane (east) where he had been traveling, taking his foot off the gas feed at the time. His left directional light had been turned on and was working. His truck was three-quarters way into the driveway at the time of impact.

Evidence was offered by Earl that he followed a school bus out of Edgerton, and after passing the city limits sign, the school bus was preceded by one or two cars and Caruso's truck, with the truck in the lead. While following behind the bus Earl was driving at a speed of 30 to 35 miles per hour. He intended to pass all of these vehicles. He accelerated his speed to 60 to 65 miles per hour, overtook the bus and the other cars, and when the car that he was driving was about 50 feet behind the truck and in the left (west) lane, the truck suddenly and without signal made a sharp left turn from the right (east) lane toward the direction of the driveway. He applied his brakes and attempted to turn to the right side of the road. The left front wheel of the truck was off the pavement at the time of impact, and the rear of the truck was still partly east of the center line of the highway. He had not sounded his horn. The car struck the rear of the truck at about its center point. It appeared that his car did not move after the impact.

By a special verdict the jury determined that Earl was causally negligent as to management and control, speed, look-out, and as to giving an audible warning of his intention to pass. Caruso was found causally negligent with respect to the manner of turning his truck into the driveway under the circumstances then and there present, but not negligent as to giving an appropriate warning signal of his intention to turn. The jury compared the negligence of the parties and determined that 80 per cent was attributable to Earl and 20 per cent to Caruso.

Appellants' first contention is that Earl's negligence is to be imputed to Schweidler for reason (1) that their enterprise was a joint adventure, and (2) that Earl was acting as Schweidler's agent.

From the facts it appears that both Earl and Schweidler were on a pleasure trip at the time of the collision. Each was making the trip for his own pleasure. Neither intended to transact any business on the trip. It appears that there was no prearrangement for a sustantial sharing of the expenses.

Appellants rely upon the principle stated in Vol. II, Restatement, Torts, p. 1273, sec. 491, that:

'Any one of several persons engaged in an enterprise is barred from recovery against a negligent defendant by the contributory negligence of any other of them if the enterprise is so far joint that each member of the group is responsible to third persons injured by the negligence of a fellow member.'

However, respondent invites attention to Comment c under sec. 491, Restatement, Torts, supra, where it is said that:

'* * * if there is no prearrangement for a substantial sharing of the expenses of the trip, * * * the trip is not a joint enterprise merely because it is made at the request of the plaintiff, because he and his host have a common destination, because the destination or any change therein is to be determined by mutual agreement, because it is arranged that the guest is to drive alternatively with his host, or even because they are going to the common destination to accomplish a purpose in which they have a common but not a business interest. No one of these facts, nor indeed all of them together, is sufficient to justify a jury or other trier of fact in finding that the trip was a joint enterprise.'

In 38 Am.Jur., Negligence, p. 940, sec. 249, it is declared that:

'The occupants of a vehicle on pleasure bound are not, because of their common objective, engaged in a common enterprise so as to make the driver of the vehicle the agent of all, with consequent responsibility for his negligence.'

In this state it has been established that ordinarily the relationship of joint adventurers does not arise out of social relations, but grows out of financial or business enterprises and springs from contract. In Krause v. Hall, 1928, 195 Wis. 565, 217 N.W. 290, the occupants of the automobile involved in the...