Wilcott v. Ley

• Decision Date: 12 May 1931
• Citation: 236 N.W. 593,205 Wis. 155
• Parties: WILCOTT v. LEY.
• Court: Wisconsin Supreme Court

205 Wis. 155

236 N.W. 593

WILCOTT

v.LEY.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Wood County; Byron B. Park, Circuit Judge.

Action by James Wilcott against August Ley. Judgment for defendant, and plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Plaintiff commenced this action on October 11, 1929, to recover for personal injuries arising out of an automobile accident, and appeals from a judgment entered June 16, 1930, dismissing the complaint.

The accident out of which this action arose happened about 12:30 a. m. on June 3, 1929. The plaintiff and his wife were returning from a dance in plaintiff's car. His wife was driving, and the plaintiff was sitting in the rear seat. According to the undisputed evidence, plaintiff's wife was driving at his request and because he was tired. When about two miles south of the city of Marshfield, plaintiff's wife attempted to pass the car of the defendant, and a collision occurred which resulted in both cars tipping over and the plaintiff sustaining severe injuries. The case was tried before the court and a jury, and a special verdict returned. The jury found the defendant guilty of negligence and that such negligence was a cause of the collision. They also found that the driver of the plaintiff's car was negligent, and that such negligence was a cause of the collision. They found that plaintiff was in no way negligent.

Upon motion after verdict, the court changed the answer to the question with respect to plaintiff's negligence from “No” to “Yes.” From the decision filed by the trial judge it appears that this order was grounded both upon the fact that the negligence of plaintiff's wife was imputed to him, and also upon the conclusion of the court that plaintiff was guilty of actual negligence as a matter of law.

Clement W. Dwyer, of Green Bay (Thomas C. Dwyer, of Green Bay, of counsel), for appellant.

William O. Meilahn, of Milwaukee (Harry M. Schuck, of Milwaukee, of counsel), for respondent.

WICKHEM, J.

It is the contention of the appellant that the trial court was in error in imputing to plaintiff the negligence of his wife in operating the car. Appellant relies principally upon the case of Brubaker v. Iowa County, 174 Wis. 574, 183 N. W. 690, 18 A. L. R. 303, as sustaining his contention. In this case plaintiff, her husband, and her sister were driving from Oshkosh to Sioux City, where she and her husband intended to reside. They were traveling in the husband's automobile, and he was driving. The injuries were the result of a defect in the highway, which the jury found was not in a reasonably safe condition for travel. The jury found no contributory negligence on the part of the driver, but the trial court changed this answer. On appeal it was the contention of appellant that the parties were engaged in a joint enterprise, and that the case was within the following language in the case of Reiter v. Grober, 173 Wis. 493, 181 N. W. 739, 741, 18 A. L. R. 362: “Only so much of the Prideaux Case [43 Wis. 513, 28 Am. Rep. 558] is overruled as imputes the negligence of the driver to an occupant in a private conveyance who has no control over the driver, is not engaged in a joint undertaking with him, is guilty of no negligence himself, and stands in no other relation to him requiring his negligence to be imputed to the occupant.”

The court held that the mere...