Whirry v. Rural Mut. Cas. Ins. Co.

• Decision Date: 08 June 1954
• Citation: 64 N.W.2d 841,267 Wis. 302
• Parties: WHIRRY, v. RURAL MUT. CAS. INS. CO. et al.
• Court: Wisconsin Supreme Court

Page 841

64 N.W.2d 841

267 Wis. 302

WHIRRY, v. RURAL MUT. CAS. INS. CO. et al.

Supreme Court of Wisconsin.

June 8, 1954.

This is an action to recover damages for injuries received by the plaintiff in a collision between automobiles driven by the defendants Arnold Whirry and Robert E. Lloyd. On August 9, 1952, Arnold Whirry was a farmer residing near Montello, Wisconsin. His wife had died and the plaintiff, his sister, was keeping house for him and his three children. Late in the afternoon of said day Arnold Whirry left his farm with his family to attend the county fair at Westfield. He had invited the plaintiff to accompany them. Arnold Whirry drove the automobile, his daughter Nancy sat next to him in the front seat, and the plaintiff sat on the right side of the front seat. The other children were in the rear seat. Shortly before the accident he was driving on County Trunk Highway J, a blacktop highway 20 feet in width with dirt shoulders, in a northwesterly direction. After rounding a curve he would normally have driven westerly to Westfield.

The defendant Lloyd had attended the fair and was driving easterly on County Trunk Highway J. For some distance before reaching the curve he drove on the wrong side of the highway. The plaintiff saw the Lloyd car before Arnold Whirry saw it. She shouted to him to 'look out' and he applied his brakes and had stopped, or had nearly stopped, when struck by the Lloyd car.

By its answers to a verdict the jury found the defendant Lloyd causally negligent with respect to lookout, speed, control and management, and driving on the wrong side of the highway. It found the defendant Arnold Whirry negligent with respect to lookout, and negligent but not causally so, with respect to management and control. The jury also found that the plaintiff was causally negligent with respect to lookout and that she assumed the risk of the negligent manner in which Arnold Whirry was driving.

Upon motions after verdict the trial court changed the answers in the special verdict with respect to the negligence of the plaintiff as to lookout and also with respect to the question on assumption of risk. Judgment was entered on October 15, 1953, in favor of the plaintiff and against the defendants for the amount of damages found by the jury. The defendant Arnold Whirry and his insurance carrier appeal from said judgment.

Rogers & Owens, Portage, for appellants.

J. K. Callahan, Montello, Callahan & Arnold, Columbus, for respondent.

BROADFOOT, Justice.

The appellants first contend that the right of a guest to recover damages from her host resulting from an automobile accident is based upon contract, requiring the guest to allege and show a standard of care on the part of the host and a breach by the host of the contract out of which the host-guest relationship arose. They first call attention to the case of Knauer v. Joseph Schlitz Brewing Co., 159 Wis. 7, 149 N.W. 494, where this court held that the doctrine of assumption of risk does not operate except where there is a contractual relationship between the parties. Because the doctrine of assumption of risk applies in host-guest cases where there have been automobile accidents, they contend that the relationship is contractual. Our attention is also called to the following quotation from the case of Switzer v. Weiner, 230 Wis. 599, 284 N.W. 509, 511:

'While the relation of guest and host is not contractual, it is consensual. The element of consideration essential in the integration of a contract is lacking. Because of its consensual character the relation of host and guest is subject to the rules of law relating to assumption of risk. The doctrine has now became well established in automobile cases.'

It is true that in its inception the doctrine of assumption of risk was limited largely to controversies between master and servant, and was not ordinarily applicable in the absence of a contractual relationship between the parties. However, the doctrine has now been extended and is applied to preclude recovery in negligence cases. A consensual contract is one completed by the consent of the parties merely, without any further act. Regardless of its inception, it is clear in Wisconsin that once the relationship has been established the host is considered a licensor and the guest a licensee.

The appellants seem to urge that we go back to the conversation between the host and guest prior to the automobile trip and from it determine the contract between them. In different cases the contracts would vary. Compliance with this suggestion would multiply the issues in automobile cases and introduce further confusion into the administration of host-guest cases. In this case the relationship had been established and just prior to the accident the plaintiff's position was that of a licensee. The duty of the host toward the guest is less than is his duty to many other users of the highway, but that duty is firmly established in our law.

Upon the calling of the first witness, Whirry and his insurance carrier interposed a demurrer ore tenus to the complaint, based upon the first contention herein made, namely, that the host-guest relationship existed, that...