Wulf v. Rebbun

• Decision Date: 24 November 1964
• Citation: 131 N.W.2d 303,25 Wis.2d 499
• Parties: Renate WULF, Plaintiff-Respondent, v. Rodger REBBUN, United Services Automobile Association, Bernard Yenter and Farmers Insurance Exchange, Defendants-Appellants, and American Motors Corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 303

131 N.W.2d 303

25 Wis.2d 499

Renate WULF, Plaintiff-Respondent, v. Rodger REBBUN, United Services Automobile Association Bernard Yenter and Farmers Insurance Exchange Defendants-Appellants and American Motors Corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Nov. 24, 1964.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, for Rebbun and U. S. Auto. Assn.

Bender, Trump, Davidson & Godfrey, Milwaukee, for Yenter and Farmers Ins. Exchange.

Thomas W. Godfrey, Donald R. Peterson, Milwaukee, of counsel, for appellant.

Giffin, Simarski & Koch, Milwaukee, Edward J. Simarski and James P. Brennan, Milwaukee, of counsel, for defendant-respondent.

HALLOWS, Justice.

The issue on this appeal is whether the cross-complaints state a cause of action. Pleadings on demurrer are to be liberally construed with a view to substantial justice to the parties and are entitled to all reasonable inferences in favor of the pleading which can be drawn from the facts pleaded. Secs. 263.07, 263.27, Stats.; D'Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis.2d 390, 120 N.W.2d 70; Arnold Joerns Co. v. Roberts (1962), 16 Wis.2d 333, 114 N.W.2d 416. The appellants correctly point out that in negligence actions pleadings are sufficient if they allege ultimate facts and that the acts were negligently performed. Colton v. Foulkes (1951), 259 Wis. 142, 47 N.W.2d 901; Weber v. Naas (1933), 212 Wis. 537, 250 N.W. 436. While the complaint must be liberally construed it must still state a cause of action and must fairly inform the opposite party of what he is called upon to meet by alleging specific acts. A pleading may fairly inform an opposite party what he is called upon to meet and yet not state a cause of action. However, as stated in Kagel v. Brugger (1963), 19 Wis.2d 1, 119 N.W.2d 394, the question on this demurrer is whether the complaint which fairly informs the defendant of what he is charged states facts which give rise to a duty of the defendant owing to the plaintiff as a matter of law.

Specifically, can an operator of a motor vehicle parked along a curb be negligent in signaling another motorist to proceed out of an alley in front of him and into the street. In sustaining the demurrers the trial court reasoned it was 'fair to assume that the most the truck driver assumed to do is to guarantee passage before his own vehicle by virtue of the signaling' and it was 'unreasonable to assume in this kind of situation * * * that the driver did any more than guarantee that the vehicle he was operating would not place the Yenter vehicle in jeopardy.' We think the trial court in error in making such assumptions from the pleadings. However reasonable such assumptions may appear, they are drawn against the effect of the allegations in the pleadings which should not be done on demurrer. Arnold Joerns Co. v. Roberts, supra.

We believe the reasonable inferences from the pleadings alleged an assumed duty owing to the plaintiff which the truck driver breached and the negligence was a substantial cause of the plaintiff's injuries. Admittedly the driver of the American Motors truck had no duty to signal Yenter. In fact, since the truck was parked as distinguished from stopped along the curb it could be inferred there would be no reason to signal Yenter he could proceed in front of the truck without hazard. Although one may have no duty to perform an act, if he attempts to do something to another even although gratuitously he must exercise reasonable care. Firkus v. Rombalski (Wis.1964), 130 N.W.2d 835; Prosser, Law of Torts, p. 339, sec. 54, ch. 10, Affirmative Conduct; 38 Am.Jur., Negligence, p. 569, sec. 17. The oft-quoted rule was aptly and simply stated by Judge Cardozo in Glanzer v. Shepard (1922), 233 N.Y. 236, 135 N.E. 275, 276, 23 A.L.R. 1425, '* * * It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. * * *'

The appellants rely on Thelen v. Spilman (1957), 251 Minn. 89, 86 N.W.2d 700, 77 A.L.R.2d 1315, wherein the plaintiff after driving behind the truck for about a mile on a two-lane highway was given a signal to pass by the driver of the truck. The driver had been driving with his lights on dim and apparently did not see a car approaching some 150 feet ahead. The plaintiff pulled out to pass the truck and collided with the oncoming car. On appeal the court affirmed the jury finding of negligence on the part of the truck driver, recognizing the principle of liability for the negligence performance of a voluntarily-assumed duty. Significantly, when the signaling driver assumed the responsibility of informing the other driver by his signal that the road ahead was safe for travel, the signaling driver was in a better position to make the determination than the driver for whom the signal was meant.

In Devine v. Cook (1955), 3 Utah 2d 134, 279 P.2d 1073, 1075, relied on by the respondent, a truck operated by one Hatch was proceeding on the inside or left lane of a four-lane highway. Plaintiff was following the truck in the righthand lane. As the Hatch truck neared the intersection which was controlled by stop signs it slowed down and signaled to make a lefthand turn. Defendant Cook was waiting at the stop sign on the left when the driver of the Hatch truck signaled for her to proceed, which the defendant did. She passed in front of the truck and collided with the oncoming plaintiff's car. On appeal the court held Hatch was not negligent stating that all the signal amounted to was a manifestation on the part of the driver that as far as he was concerned the motorist could proceed, i. e., that he yielded the right-of-way. In this case the driver of the truck was in no position to see the traffic coming from his rear and to his right.

The pleadings in the instant case do not expressly allege the driver of the American Motors Truck parked at the curb could or did look to his left and rear to see if traffic was coming before he signaled, nor do we know the size of the motor vehicle and how much it may have obstructed Yenter's view of oncoming traffic to the south on North Holton street. However, it is alleged the employee of American Motors was negligent in signaling Yenter who was 'proceeding our of the alley to proceed well-knowing that it was unsafe and dangerous in view of the conditions of the traffic then and there existing.' The inference is reasonable the truck driver looked and ascertained the traffic before signaling.

The ability to foresee future harm by the person signaling and the fact of such ascertainment lends meaning to the signal and to the reasonable interpretation of what the signal meant to the recipient. In Miller v. Watkins (Mo., 1962), 355 S.W.2d 1, 90 A.L.R.2d 1426, a...