Schwenkhoff v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 02 January 1959
• Citation: 6 Wis.2d 44,93 N.W.2d 867
• Parties: Vada SCHWENKHOFF, Plaintiff, Lonette Schwenkhoff, by Guardian ad litem, Vaughn S. Conway, Appellant, v. FARMERS MUTUAL AUTOMOBILE INS. CO. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 867

93 N.W.2d 867

6 Wis.2d 44

Vada SCHWENKHOFF, Plaintiff Lonette Schwenkhoff, by Guardian ad litem, Vaughn S. Conway, Appellant, v. FARMERS MUTUAL AUTOMOBILE INS. CO. et al., Respondents.

Supreme Court of Wisconsin.

Jan. 2, 1959.

Rehearing Denied March 3, 1959.

Vaughn S. Conway, Kenneth H. Conway, Baraboo, for appellant.

Langer & Cross, James R. Seering, Dist. Atty., Baraboo, for respondents.

BROADFOOT, Justice.

In Wick v. Wick, 1927, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113, this court determined that an unemancipated minor cannot maintain an action in tort against its parent for personal injury sustained in an automobile accident due to the negligence of the parent. That rule has been consistently followed in this state since that time.

Appellant contends (1) That the rule in the Wick case merely forbids litigation between the child and its parent; (2) that the father, by obtaining insurance against liability for negligence, has transferred liability to the insurance company and the statutes and insurance policy permit a direct action against the insurer without joining the parent; and (3) that by art. I, sec. 9, Wis.Const., every person is entitled to a certain remedy in the law for all injuries or wrongs which he may receive in his person.

The subject has received the attention of this court in later cases, among which are Zutter v. O'Connell, 200 Wis. 601, 229 N.W. 74; Segall v. Ohio Casualty Co., 224 Wis. 379, 272 N.W. 665, 110 A.L.R. 82; and Lasecki v. Kabara, 235 Wis. 645, 294 N.W. 33, 130 A.L.R. 883.

In Fidelity Savings Bank v. Aulik, 252 Wis. 602, 32 N.W.2d 613, the reverse of the rule was considered. In that case the father was a passenger in a car operated by his unemancipated minor son. In that case no action was permitted on behalf of the estate of the parent against the minor son or his insurance company.

The appellant claims that the rule in the Wick case was relaxed in Le Sage v. Le Sage, 224 Wis. 57, 271 N.W. 369. In that case the plaintiff was injured as a result of the negligence of her father in the operation of an automobile. The automobile was owned by one Dolly Le Sage, a sister of C. F. Le Sage, who was the father of the plaintiff. The automobile was driven at the express direction and for the direct benefit of Dolly Le Sage and recovery was permitted against her and her insurer under the doctrine of respondeat superior. The appellant contends that this was a modification of the rule in the Wick case. However, in the Segall case, supra, which was decided in the same year and is reported in the same volume, the rule in the Wick case was re-affirmed. The same attorney appeared for the plaintiff in the Le Sage case and in the Segall case, and the same attorneys represented the defendants in both of said actions.

All of the arguments advanced by the appellant have been considered by this court in other cases involving actions by or on behalf of unemancipated minors against a parent. A careful reading of the decisions in the cases cited above will show that there has been no relaxation or modification of the pronounced in the Wick case. In some of the decisions attention is called to the fact that the Wick decision was based upon public policy; that matters of public policy are to be resolved by the legislature, and...