State ex rel. Litzen v. Dillett

• Decision Date: 13 April 1943
• Citation: 242 Wis. 107,9 N.W.2d 80
• Parties: STATE ex rel. LITZEN v. DILLETT, County Judge.
• Court: Wisconsin Supreme Court

242 Wis. 107

9 N.W.2d 80

STATE ex rel. LITZEN

v.DILLETT, County Judge.

Supreme Court of Wisconsin.

April 13, 1943.

On motion for rehearing-[By Editorial Staff.]

Motion denied.

For former opinion see, 242 Wis. 107, 7 N.W.2d 599.

Schubring, Ryan, Petersen & Sutherland, of Madison, and Wallrich & Aschenbrener, of Shawano, for petitioner.

Benton, Bosser, Becker & Parnell, of Appleton (David L. Fulton, of Appleton, of counsel), for respondent.

FRITZ, Justice.

On the motion for a rehearing, respondent contends the ruling herein, that a guest's right to recover for injury caused by his host's acts of causal negligence in the two respects, as to which there was no assumption of risk, was not barred by his assumption of the risk occasioned by the host's causally negligent lookout, is contrary to prior decisions by this court. In support of this contention respondent relies principally upon the decisions in Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721, 92 A.L.R. 680;Scory v. La Fave, 215 Wis. 21, 254 N.W. 643;Knipfer v. Shaw, 210 Wis. 617, 246 N.W. 328,247 N.W. 320, and Raddant v. Labutzke, 233 Wis. 381, 289 N.W. 659. A study of the decisions therein will disclose, however, that there was no express determination therein in relation to the proposition involved in that ruling.

In the Walker case, supra, there was no occasion whatever to pass upon that proposition. Walker, the host, was found causally negligent in respect to lookout and also control and management; and in sustaining these findings we held that his guests, Iselin and Bashaw, had assumed the risk of injury incident to Walker's negligence in each of those respects. In the absence of any claim that there was any negligence on the part of Walker in any other respect, because of which he could be held liable to his guests, we held that there was no such liability whatever on his part. This decision, made in the absence of other negligent acts of the host as to which the guest had not assumed the risk, clearly is not in point on the question as to whether there can be a recovery by the guest based on such other acts of negligence.

Similarly, in the Scory case, supra, the jury found that the host, La Fave, was causally negligent in parking her automobile on the wrong side of the road, and in turning on the bright lights; and that she thereby increased or added a new danger to her guest, Scory. On motions after verdict, the trial court held that Scory assumed the risk of La Fave's negligence in both respects. On plaintiff's appeal from a judgment dismissing her complaint against the defendant, Swanson (against whom Scory had commenced the action to recover for injury caused by his negligence in operating his car as it collided with La Fave's car), we said that “the injury to plaintiff, which followed the combination of her host's negligent acts, was primarily caused rather by the latter's antecedent negligence in parking than by the subsequent turning up of the lights. Under the circumstances, as Mrs. La Fave's negligence in the latter respect cannot well be separated from her prior negligence in parking, which actually created the dangerous situation assumed by plaintiff, she is also deemed, in law, to have assumed the risk involved in that situation by reason of her host's negligence in incidentally increasing the danger by turning up the lights. * * * It follows that, as to Mrs. La Fave, plaintiff's right to recover from her is defeated by her assumption of the risk * * *.” [215 Wis. 21, 254 N.W. 646.]

As that determination was based on the conclusion that Scory had assumed the risk incident to the respects in which her host La Fave was causally negligent, and there was no causal negligence in other respects on the part of La Fave, as to which there was no assumption of risk by Scory, there was no occasion to consider or determine the particular question involved herein.

In the Knipfer case, supra, the action was brought by plaintiff against Shaw, but on his motion plaintiff's husband, Joseph Knipfer, was interpleaded and charged, in Shaw's cross-complaint for contribution, with causal negligence in several respects in operating the car in which he and plaintiff were riding when it collided with Shaw's car. The jury found both Shaw and plaintiff's husband were causally negligent in respect to lookout, control, and driving to the left of the center of the highway; and also found that plaintiff, in riding in her husband's car under the existing conditions, did not assume the risk of injury. On defendants' appeal from a judgment against them, we held that a person may not ride in a car for many miles under such foggy and dangerous conditions as existed at the time in question without fully assuming the risk of injury incident to such a trip; and that the plaintiff assumed the risk, and in justice should not be permitted to recover damages from her husband. Whether that assumption of risk was as to all or but part of the three respects in which the husband was negligent is not stated in the opinion. But in concluding also that plaintiff could not...