Sommerfield v. Flury

• Decision Date: 05 February 1929
• Citation: 223 N.W. 408,198 Wis. 163
• Parties: SOMMERFIELD v. FLURY ET AL. WESSEL v. FLURY ET AL. (TWO CASES). WIEGERT v. FLURY ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 163

223 N.W. 408

SOMMERFIELD

v.FLURY ET AL.

WESSEL

v.FLURY ET AL. (TWO CASES).

WIEGERT

v.FLURY ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1929.

Appeals from judgments of the Circuit Court for Fond du Lac County; Chester A. Fowler, Circuit Judge. Reversed.

For several actions brought by William F. Sommerfield, administrator of the estate of Charles J. Schmidt, deceased, Henry Wessel, Lester Wessel, and Otto Wiegert against Edward Flury, Earl Krueger, and General Casualty Company, to recover damages for injuries received by reason of an automobile collision. From a judgment in favor of the plaintiffs, the defendants appeal.

On the morning of August 29, 1927, a threshing crew was assembled at the farm of one Arthur Zahn, in Fond du Lac county. A telephone message came to the Zahn home at about 8:30 a. m., stating that farm buildings were on fire about five miles distant, and calling for help. Earl Krueger, a member of the threshing crew, jumped into his automobile to respond to the call. Without any invitation on the part of Krueger, the plaintiffs Otto Wiegert, Lester Wessel, Henry Wessel, and the deceased, Charles J. Schmidt, also got into the car for the purpose of going to render assistance at the fire. They proceeded east on county trunk Y, a distance of about a half mile, when they came to the intersection of said county trunk Y with county trunk V, running north and south, at which point the car of Krueger collided with a truck belonging to the defendant Flury, driven by one Collien, and going north, as a result of which plaintiffs sustained injuries. These actions are to recover damages therefor. The actions were tried together. The special verdict in the Henry Wessel case was as follows:

“1. Did Mr. Krueger (the driver of the Buick car) fail to use ordinary care as he approached and was at the intersection:

(a) In respect of yielding the right of way? Answer: No.

(b) In respect of keeping a lookout? Answer: Yes.

(c) In respect of speed? Answer: Yes.

If to a, b and c or any of them you answer ‘Yes' answer 2 and 3:

2. Was the want of ordinary care thus found a cause of the collision? Answer: Yes.

3. Ought Mr. Krueger as a person of ordinary intelligence and prudence, reasonably to have foreseen from the circumstances that the want of ordinary care thus found might probably cause some injury to another? Answer: Yes.

4. Did Mr. Collien (the driver of the truck) fail to use ordinary care as he approached and was at the intersection:

(a) In respect of speed? Answer: Yes.

(b) In respect of keeping a lookout? Answer: Yes.

If to a and b of question 4 or either of them you answer ‘Yes' answer 5 and 6:

5. Was the want of ordinary care thus found a cause of the collision? Answer: Yes.

6. Ought Mr. Collien as a person of ordinary intelligence and prudence, reasonably to have foreseen from the circumstances that the want of ordinary care thus found might probably cause some injury to another? Answer: Yes.

7. Ought Lester Wessel, as an ordinary intelligent and prudent person, reasonably to have foreseen from the circumstances that the manner in which Mr. Krueger was driving as he approached the intersection might probably cause or contribute to do him some injury. Answer: No.

8. In case the court awards judgment to plaintiff upon your verdict at what sum do you assess his damages? Answer: $368.00.”

The other verdicts were identical, except as to the amount of damages, in response to question 8. Upon this verdict, judgment was entered in favor of the plaintiff in each case, from which each of the defendants appeal.

Williams & Foster, of Fond du Lac, and Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

Martin & Kelley and L. E. Lurvey, all of Fond du Lac, for respondents.

OWEN, J.

Appellants' first, and perhaps principal, contention is that the judgments should be reversed, because all of the occupants of the Krueger car were engaged in a joint undertaking, and Krueger was liable only for gross negligence. This contention is based on the fact, as the court found, that it was a custom of the neighborhood for every one to turn out to help when buildings caught fire. The burning building was insured in the local town mutual fire insurance company, as was property of some others who went to the fire to help; that Krueger did not invite any of the occupants of the car to ride with him nor did they ask permission to ride. The argument is that the neighborhood custom devolved upon each of the occupants of the car the duty to rush to a fire, and that they were riding in the car for the purpose of discharging a duty common to all of them.

[1] The ordinary conception of a joint undertaking is that it grows out of a financial or business enterprise, and springs from contract. It is much like a partnership, the principal difference being that a joint undertaking is confined to a single enterprise rather than to a continuous business relation. Our attention has been called to a few scattering cases where courts have considered relations purely social in their nature as giving rise to a joint undertaking. We believe such conclusions were reached without giving due consideration to the true character of a joint enterprise, as the same is known in the law. We have said in Krause v. Hall, 195 Wis. 565, 217 N. W. 290, that the relations of joint adventurers do not arise out of social relations. We are still of that opinion.

[2] The trip of the Krueger car involved nothing of a joint financial interest to its occupants. Neither did it involve the performance of a joint duty. The duty devolving upon each of the occupants of the car, according to the neighborhood custom, was several and not joint. It was individual and not common. Each grasped the most convenient means at hand to enable him to reach the fire in order to discharge his neighborhood duty. There was no more of a financial or joint interest involved than if they were going to the polls to vote. Nothing in the nature of a mutual agency existed between them, which is characteristic of the relation of joint adventurers, just the same as of partners. It seems plain that the occupants of the car were not engaged in a joint enterprise, and that the relation of joint adventurers did not exist between them.

It is earnestly contended that, if they were not coadventurers, the conventional relation of host and guest did not exist between the occupants of the car and Krueger, and that it should be held that some other relation than that of host and guest existed between them. Attorneys for appellants concede that, where one, starting on an automobile trip, invites another to accompany him for the sake of company and companionship, the conventionalrelation of host and guest is established. They maintain, however, that a different relation exists where, for the purposes of illustration, a group of delegates desire to attend a convention, in the affairs of which each entertains a certain and perhaps similar interest; this group get together and discuss the means of conveyance by which they shall reach the convention, and, as a result of their deliberations, one agrees to drive his car for the purpose of transporting them all to such convention--it is said that under such circumstances a different relation is established than that where one merely invites another to accompany him on an automobile trip, and that the driver of an automobile should be held to a less degree of care, where the trip is for the benefit and by the agreement of all, than where it is pursuant to the express invitation of the driver of the car. In other words, it is urged that there should be a classification of the relation of host and guest, so that the duty which devolves upon the driver of the car, where the conventional relation of host and guest exists, should be minimized where the trip is pursuant to an...