Wilcox v. Wunderlich

• Decision Date: 31 August 1928
• Docket Number: 4456,4488
• Citation: 272 P. 207,73 Utah 1
• Court: Utah Supreme Court
• Parties: WILCOX v. WUNDERLICH et al

272 P. 207

73 Utah 1

WILCOX v. WUNDERLICH et al

Nos. 4456, 4488

Supreme Court of Utah

August 31, 1928

Rehearing Denied December 14, 1928.

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Orson C. Wilcox against Herman Wunderlich, Sr., Herman Wunderlich, Jr., and others. From a judgment against defendants Wunderlich, they appeal, and from a judgment of nonsuit as to the remaining defendants, plaintiff appeals. Reversed and remanded for new trial as to Wunderlich, Sr and affirmed as to all other defendants.

Affirmed.

Vernon Snyder and Willard Hanson, both of Salt Lake City, for plaintiff.

King &amp Schulder and Ray Van Cott, all of Salt Lake, for defendants Wunderlich.

C. W. Morse and M. E. Wilson, both of Salt Lake City, for defendants Heiner.

STRAUP J., HANSEN, J., CHERRY, J. GIDEON, J., THURMAN, C. J., concurring. CHERRY and GIDEON, JJ., dissenting.

OPINION

STRAUP, J.

This action was brought by plaintiff to recover damages for the wrongful death of his son, 8 years of age, alleged to have been caused by the negligence of the defendants. The case was tried to a jury. At the conclusion of the plaintiff's evidence the court granted a nonsuit as to the Heiners, and at the conclusion of all the evidence submitted the case to the jury as to the Wunderlichs. A verdict was returned against both of the Wunderlichs, and from the judgment entered thereon both appeal. The plaintiff also appeals from the judgment entered on the nonsuit in favor of the Heiners.

Heretofore, by a divided court, an opinion was rendered, affirming the judgment of the court below. On a petition filed by the Wunderlichs, a rehearing was granted, and the case reargued and resubmitted. The opinions heretofore filed are now withdrawn, and the case determined in accordance with the opinions now filed.

Herman Wunderlich, Sr., and Herman Wunderlich, Jr., are father and son. Herein the former will be referred to as Wunderlich and the latter as Herman. Moroni Heiner and Frank Heiner are father and son. In the complaint it is alleged that at the time of the accident both sons were minors under 16 years of age; that prior thereto their fathers purchased an automobile for the use of the minors, knowing they intended to use it is Salt Lake City, where the accident occurred, and where by an ordinance of the city and by statute it was unlawful for any person under 16 years of age to drive or operate an automobile on any public street or highway, and that they knew the minors drove the car on public streets of the city with the consent and approval of the parents; that the minors "both were and each was inexperienced in the driving of an automobile, and did not understand how to operate or drive an automobile in a careful or prudent manner, all of which was known to the said Herman Wunderlich and the said Moroni Heiner, and both of them"; that at the time of the accident the minors negligently and carelessly, and in violation of law, drove the automobile after dark without any lights on a public street, failed to observe a proper lookout and to sound the horn of the automobile, or give any warning of its approach, and because thereof, "and by reason of the inexperience and lack of knowledge of said minors as to the driving and operating of an automobile," it was run and operated by them against plaintiff's son, and so injured him that he died three days thereafter. The ordinance also was pleaded, which provided that:

"It shall be unlawful for any person under 16 years of age to operate of drive any vehicle upon any street of Salt Lake City."

Our statute also provides that:

"No person, whether resident or nonresident of this state, under sixteen years of age, shall operate a vehicle or tractor upon any highway of this state." Laws Utah 1921, p. 235.

At the time of the accident Herman was 15 years and 11 months of age. Frank Heiner was about the same age. Each lived with his parents. Wunderlich, in Salt Lake City, owned and operated a service station, selling gasoline, oils, and automobile supplies, and making minor repairs on automobiles. Herman was employed at the station, selling oils and gasoline, greasing cars, and making minor repairs on them. That he was experienced in handing cars, had good knowledge of the mechanism of them, and was an experienced and capable driver, is not disputed. About a month or two prior to the accident, at the request of the boys, Wunderlich sold the car, a used car which he had for sale, to Herman, Frank Heiner, and a young boy named Pinney, all under 16 years of age. Soon thereafter Pinney sold his interest in the car to Herman and Frank. After the car was delivered to the boys, the car was kept part of the time in the garage of Wunderlich at his residence, and part of the time at the garage and residence of Moroni Heiner. The car was used exclusively by Herman and Frank, by one or the other, or by both, solely for their own pleasure, and at no time for the use or benefit of either parent or of his family. The car belonged to the boys, was purchased by them with moneys earned by them, and was solely used by them whenever they desired, without asking permission or consent of their parents or of any one.

Wunderlich testified that, when he sold the car to the boys, he expected they would drive the car whenever and whereever they wanted to use it, and that he had no control over that; that he knew the car was kept at his house part of the time, and part of the time at the house of Moroni Heiner; that he discussed with Moroni Heiner the advisability of taking out liability insurance for the protection of the boys, and that he and Moroni Heiner procured the insurance, each paying one-half of the premium; that the license of the car was taken out by them for the boys in the name of "Frank Heiner & Co."; that, after the car was delivered to the boys, neither he nor Moroni Heiner had anything to do with it, except getting the license and taking out the insurance; and that he saw the boys use the car and drive it on public streets of the city.

Moroni Heiner testified that he was familiar with the purchase of the car, and that it was purchased by the boys about a month before the accident; that he knew they were driving the car on public streets; that the car was kept part of the time at his house and part of the time at Wunderlich's house; and that the car was driven at all times by the boys with his knowledge. He further testified he objected to his son getting the car; that he--

"tried to talk him out of it, but he had his mind set. I did not prevent him from driving it. I did not forbid him any more. He had driven my car when he was out with me."

On the evening of May 13, 1924, the day in question, Herman went to the Heiner home, where the car was. He and Frank took it and drove around town, exclusively for their own pleasure, with two other boys. After driving around a while, and stopping at a store in the southern part of the city, it was discovered that one of the front lights of the automobile "flickered"--did not burn brightly. Herman and Frank between 8 and 9 o'clock, and after dark, started to drive the car to the service station to fix the light; Herman driving the car. They proceeded a short distance north on the east side of Fifth East street in the city, a paved and much-traveled street, to a point opposite Ramona avenue, running east and west. There is a conflict in the evidence as to whether Frank was with Herman when the car reached Ramona avenue. There is evidence to show that he left the car before they reached that point and went home, leaving Herman to drive the car alone from there to the service station. There, however, also is evidence to show that Frank was in the car with Herman at the time of the accident. When the car reached Ramona avenue, it was stopped by Herman to permit automobiles to pass south along the west side of Fifth East street before he turned west and entered the avenue. Crossing Fifth East street and entering the avenue the car was operated in intermediate gear at a speed of not to exceed 8 or 10 miles an hour. The avenue was a dirt street, except the intersection of the two streets, which was paved. There were paved sidewalks on both streets. At the intersection was a bright arc light, rendering objects and an automobile at and about the intersection about as visible as in the daytime.

As the car crossed Fifth East street and entered the avenue, some boys and girls from 8 to 12 years of age were playing on the west sidewalk of Fifth East street and north of the avenue. Herman, as he approached and drove over the crossing, saw the children playing, but, as he testified, paid no particular attention to them, as he was looking ahead in the direction in which he was driving. The deceased and another boy about the same age were running a "hop-skip" race down the sidewalk on Fifth East street toward the avenue. On reaching the north sidewalk of the avenue, one of the girls of the party caught and "tagged" the deceased's companion. Another girl attempted to catch and tag the deceased, but he dodged away, ran westerly on the north sidewalk of the avenue, and then into the avenue immediately in front of the moving automobile. He was struck by the car, not on the crossing, but several feet west of it, west of the paved portion. Some of the witnesses testified that the boy ran immediately in front of the automobile as he left the sidewalk. Others testified that he ran partly across the avenue, and then suddenly turned and ran back immediately in front of the car.

There is a conflict in the evidence as to whether the front lights of the automobile were burning. Some of the witnesses testified that they were not, or, at least,...