Suschnick v. Underwriters Cas. Co.

• Decision Date: 09 May 1933
• Citation: 211 Wis. 474,248 N.W. 477
• Parties: SUSCHNICK v. UNDERWRITERS CASUALTY CO. ET AL.
• Court: Wisconsin Supreme Court

211 Wis. 474

248 N.W. 477

SUSCHNICK

v.UNDERWRITERS CASUALTY CO. ET AL.

Supreme Court of Wisconsin.

May 9, 1933.

Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.

Action by Ruth L. Suschnick against the Underwriters Casualty Company and Warren Cater. From a judgment in favor of plaintiff against it, the Casualty Company appeals.--[By Editorial Staff.]

Affirmed.

Action to recover damages for personal injuries sustained in an automobile collision. Plaintiff was a passenger in an automobile driven by Robert Suschnick, who was killed in the collision, and who left no estate for administration. Plaintiff brought her action directly against his insurer, Underwriters Casualty Company, and joined, as a defendant, Warren Cater, the driver of the other car in the collision. Cater denied liability, and also filed a cross-complaint against the Underwriters Casualty Company. That defendant filed a plea in abatement to plaintiff's complaint and also answered, denying liability under the complaint, as well as the cross-complaint. Plaintiff recovered judgment against the Underwriters Casualty Company, and that defendant appealed.Stone & Park, of Wausau, for appellant.

Alfred W. Gerhard, of Wausau, for respondent.

FRITZ, Justice.

Plaintiff was injured November 26, 1931, while a passenger in an automobile, which was being operated by her husband, Robert Suschnick, and which collided with an automobile operated by Warren Cater. Robert Suschnick was killed and, as his estate was insolvent, there was no probate administration. Plaintiff brought this action against Cater, and also directly against the defendant Underwriters Casualty Company, which had issued an automobile liability policy to Robert Suschnick, to recover damages for personal injuries sustained by plaintiff because of the alleged negligence of Cater and of Robert Suschnick. Earl Hoenisch, who is the plaintiff in a companion case, 248 N. W. 481, decided herewith, was also a passenger in Suschnick's car, and also commenced an action to recover from the Underwriters Casualty Company and Cater for personal injuries which he sustained by reason of the alleged negligence of Robert Suschnick and Cater. The latter was the plaintiff in another action, also decided herewith (248 N. W. 481), which he brought directly against the Underwriters Casualty Company to recover damages sustained by him by reason of the alleged negligence of Robert Suschnick. In the actions in which Cater was joined as a defendant by Ruth Suschnick and Hoenisch, he denied that he had been negligent, and he also filed a cross-complaint for contribution against the Underwriters Casualty Company. The Underwriters Casualty Company, in answer to each of the complaints and cross-complaints, denied that Robert Suschnick had been negligent, and also denied that any of the claimants were entitled to recover because of any negligence on the part of Robert Suschnick. It also denied liability on the ground that its policy of insurance had been procured by fraud on the part of Robert Suschnick, in falsely representing and warranting that no claims had been made against him on account of an accident occasioned by any automobile owned by him, and that no insurance had been declined or canceled for him. That defendant also filed pleas in abatement on the ground that there was a misjoinder of causes of action, and parties defendant, in that no representative of the estate of Robert Suschnick had been joined, and that its policy contained a so-called “no action” clause. By stipulation all of those actions were tried together and were submitted to the jury on a single special verdict.

The collision occurred at about 1:45 o'clock a. m., on a clear night, while all of the parties, who were in the accident, were returning from a dance at which beer had been served. In a special verdict which was returned, and upon which the judgments in favor of Ruth Suschnick, Hoenisch, and Cater were entered against the Underwriters Casualty Company, the jury found that Robert Suschnick was not negligent in driving at an excessive speed or while under the influence of liquor; that negligence on his part in failing to keep a sufficient lookout and proper control of his automobile, in operating it with insufficient headlights, and in driving on the left half of the roadway, caused the collision; that Cater did not operate his automobile at an excessive rate of speed, or while under the influence of intoxicating liquor, and did not fail to keep a sufficient lookout and control of his car; that neither Ruth Suschnick, nor Hoenisch, was negligent as to their safety in respect to keeping a sufficient lookout, or in riding in Robert Suschnick's car while it was being operated by him, or with the headlights thereof in the condition in which they were.

[1] A review of the evidence relating to those findings discloses that, although there is some conflict, there is ample basis for the jury's findings. Consequently, and as the trial court, in ordering judgment thereon, has approved them, they must stand on this appeal, and no purpose will be served now by a detailed discussion of the evidence, excepting in relation to matters as to which it is now contended that error was committed by the court.

[2][3][4] It is contended on behalf of the Underwriters Casualty Company that Ruth Suschnick and Hoenisch were negligent as a matter of law in continuing to ride as passengers with Robert Suschnick, because, although the latter was so intoxicated that he could not safely operate his automobile, they permitted themselves to fall asleep, while the automobile continued to proceed for about half a mile to the place of the accident.

There is evidence that Ruth Suschnick and Hoenisch did doze off while traveling that last half mile, and that neither of them saw the cars collide. However, there was such conflict in the evidence as to the nature and amount of the liquor consumed by Robert Suschnick that evening, whether it was intoxicating, and whether he was influenced at all thereby, that it was clearly for the jury to determine whether his ability to operate the car had been affected, and whether his condition was such that there was any occasion for his passengers, in the exercise of ordinary care, to be apprehensive on that account as to their own safety. Furthermore under the evidence, the jury could find that the collision occurred just as Robert Suschnick, who was driving northward, completed a turn to the west on a curve in a concrete...