Zurn v. Whatley

• Citation: 251 N.W. 435,213 Wis. 365
• Parties: ZURN v. WHATLEY ET AL.
• Decision Date: 05 December 1933
• Court: United States State Supreme Court of Wisconsin

213 Wis. 365

251 N.W. 435

ZURN

v.WHATLEY ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1933.

Appeal from a judgment of the Municipal Court of Outagamie County; Theodore Berg, Municipal Judge.

Action by Louis Joseph Zurn, administrator of the estate of Magdeline Zurn, deceased, against Seaborn T. Whatley, Jr., and John P. Marsh in which defendants interpleaded Albert H. Matthes. From the judgment, defendant Marsh and interpleaded defendant Matthes appeal.--[By Editorial Staff.]

Affirmed in part and reversed in part, with directions.

The action, commenced July 13, 1932, is by the administrator of the estate of a guest in an automobile killed in a collision with another automobile, against the driver and owner of the other automobile, grounded on alleged agency and negligence of the driver. The defendants interpleaded the driver of the car in which the decedent was riding, charging him with contributory negligence and demanding a judgment for contribution. Judgment went against both defendants, and the defendant owner appeals. Judgment for contribution also went against the interpleaded defendant, and he appeals.

The plaintiff was the husband of Magdeline Zurn, who was killed in an automobile collision, and is suing as administrator of her estate. Mrs. Zurn was riding in a Pontiac automobile going west on federal and state trunk highway No. 10, driven by the defendant Matthes. The suit is against the driver and the owner of the other car which was going north on state highway No. 26, driven by the defendant Whatley. Whatley was held by the court as matter of law guilty of ordinary negligence that proximately caused the collision. The court also held the defendant Marsh liable on the grounds that upon the facts as found by the court a son of Marsh was a co-driver with Whatley, and that the jury found that the son was Marsh's agent in driving the car. Judgment went against both Whatley and Marsh for damages as assessed by the jury.

The defendants interpleaded Matthes, the driver of the other car, charging him with being jointly negligent with Whatley, and demanded contribution from him towards any amount paid by them in satisfaction of a judgment against them. The court held as matter of law that Matthes was guilty of negligence that contributed as a proximate cause to produce the collision, and upon this finding awarded a judgment for contribution against him for one-half the amount that should be paid by them upon the judgment. The defendant Marsh and the interpleaded defendant Matthes appeal. The defendant Whatley does not appeal.

Lamfrom, Tighe, Engelhard & Peck, of Milwaukee, for appellant John P. Marsh.

J. L. Schlatterer and Regan & McCue, all of Milwaukee (Harold M. Wilkie, of Madison, of counsel), for appellant Matthes.

Benton, Bosser & Tuttrup, of Appleton, for defendant and respondent Whatley, Jr.

William A. Hayes and Robert I. Hayes, both of Milwaukee, for respondent Zurn.

FOWLER, Justice.

The appellant Marsh claims that (1) as matter of law neither his son nor Whatley was his agent in driving the car, and that the court erroneously found (2) that his son was a co-driver with Whatley and as such was negligent.

The appellant Matthes claims that he was not guilty of negligence (3) as matter of law or (4) of fact; (5) that the court should upon his request have submitted to the jury whether Whatley was guilty of gross negligence because the evidence required such submission and, if he was so guilty, contribution would not lie; and that (6) if he was correctly found guilty of joint negligence with the other defendants, his liability to contribution would not be for one-half the amount paid by his joint tort-feasor, but for such proportion thereof as his negligence bore to that of Whatley.

[1][2][3] 1. The jury found in answer to the only question submitted to them besides that relating to damages that the son of the owner of the car driven by Whatley was the owner's agent in driving the car. Three boys were occupying the car Whatley was driving. One of them was a son of the owner of the car, the defendant Marsh. It is undisputed that the boys were off on a pleasure trip of their own. Marsh's son requested of his father that he be permitted to take the car on the trip. The permission was given, but the father told him that he must drive the car himself and not exceed a speed of 45 miles per hour. This trip was not taken at the suggestion or by direction of the father. It was not for his benefit or to his advantage in any way. It was not taken in connection with any business or transaction or affair of his.

We held in Novak v. Zastrow, 200 Wis. 394, 228 N. W. 473, that, where a husband let his wife take his car to drive to the railway station to meet her mother, who was coming for a visit to her daughter and the family, the wife was not the husband's agent in driving his car. There was more reason there than here for holding that agency existed, as the mother was coming to visit her son-in-law as well as her daughter and the rest of the family, and the son-in-law was presumably, if such presumption may be indulged between son-in-law and mother-in-law, to receive enjoyment from the visit and therefore benefit or advantage. We also held in Madden v. Peart, 201 Wis. 259, 229 N. W. 57, wherein a wife was driving her husband's car, but not on any business or errand of his, and he was not in the car, that a non-suit was properly granted. In the cases of Crosset v. Goelzer, 177 Wis. 455, 188 N. W. 627, and Zeidler v. Goelzer, 191 Wis. 378, 211 N. W. 140, a son driving his father's automobile was found guilty of negligent driving, resulting in injuries to several people. It was claimed the father was liable. The son requested of and was given permission by his father to take the car to drive himself and sisters and some of their friends to skate. It was held that, to render the father liable, two elements must have existed; the father must have requested or expressed a desire that the trip be taken, and that the trip would result in his benefit or advantage. Neither of these elements here existed.

The respondent urges that, although upon the father's testimony the elements stated did not exist, the jury might not have believed him, and that the rule that from ownership agency may be presumed justifies the jury's finding. It is true that this court has held that proof of ownership of an automobile is prima facie proof of the driver's agency. Edwards v. Kohn, 207 Wis. 381, 241 N. W. 331;Enea v. Pfister, 180 Wis. 329, 192 N. W. 1018. As stated in Enea v. Pfister, supra, page 332 of 180 Wis., 192 N. W. 1018, 1019:

“Proof of the ownership of a car makes out a prima facie case, on the theory that this fact justifies an inference or raises a presumption that ...