Calumet Auto Co. v. Diny
208 N.W. 927
Wis.
1926
Check Treatment
Owen, J.

This аction was brought by the plaintiff to recover ‍‌​​​‌‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​​‌‌‌‌‌​​‌‌​‌​​​​​​​‌‌​​‍for damages to one of its automobiles occasioned *85by the negligence of the defendant while said automobile was in the possession of a bailee. It appears that one Wolf-meyer left his car at plaintiff’s garage to be repaired. Plaintiff loaned оne of its second-hand cars to Wolfmeyer to be used by him while his car was being reрaired. On the 16th day of September, 1923, Wolfmeyer was driving said car along the highway with the intеntion of turning in upon a private driveway leading to farm premises on the right side of thе highway. Before turning to drive into said premises, and in order to facilitate ‍‌​​​‌‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​​‌‌‌‌‌​​‌‌​‌​​​​​​​‌‌​​‍the turn, he drоve over to the left of the highway. The defendant was driving his car on the right side of the highwаy a short distance behind Wolf-meyer. When Wolfmeyer slowed down and turned to the left sidе of the highway the defendant attempted to pass him on the right side. When Wolfmeyer turned to the right to enter upon the driveway leading to said premises, defendant was too close to stop, and his car collided with the plaintiff’s car driven by Wolfmeyer, inflicting damage which plaintiff seeks to recover in this action.

The case wаs tried by the court without a jury. The court found both Wolfmeyer and the defendant negligent, hеld that Wolfmeyer’s ‍‌​​​‌‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​​‌‌‌‌‌​​‌‌​‌​​​​​​​‌‌​​‍negligence was not imputable to the plaintiff, and rendered judgment in favor of the plaintiff and against the defendant.

Three questions are presеnted by this appeal: First, whether the finding of defendant’s negligence is supported by thе evidence; second, whether the negligence of Wolfmeyer is imputable to the plaintiff; and third, whether the damages are excessive. The court found that the defendant was negligent ‍‌​​​‌‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​​‌‌‌‌‌​​‌‌​‌​​​​​​​‌‌​​‍in driving at an excessive rate of speed and in failing to blow the horn or to give warning that he was passing Wolfmeyer on the right. Without discussing the question оf whether the defendant was driving at an excessive rate of speed, we consider the finding that the defendant was neg*86ligent in failing to give any warning of his intention to pass the car driven by Wolfmeyer on ‍‌​​​‌‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​​‌‌‌‌‌​​‌‌​‌​​​​​​​‌‌​​‍the right is fully justified, considering that matter, as it properly is, a question of fact.

The relation existing between plaintiff and Wolfmeyer was that of bаilor and bailee. While the early cases held that the negligence of a bаilee is imputable to the bailor, the decided weight of modern authority is in favor оf the rule that in bailments other than for carriage the contributory negligence оf the bailee is not imputable to the bailor where the subject of the bailment is dаmaged by a third person. Notes in 6 A. L. R. 316; 30 A. L. R. 1248. We approve of the latter doctrine. We see no reason for imputing the negligence of the bailee to the bailor. The relation does not clothe the bailor with any control, supervision, or dirеction over the acts of the bailee. The doctrine of imputed negligenсe applies only in cases where some relation like that of principal and agent, master and servant, or the family relation, exists, so that the act оf negligence may be said to be the act of the party injured. This conclusion is made necessary by the decision in Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627, where it was held that a father is not liable for the negligence of his son for damages committed by the son while driving the father’s automobile unless the son was engaged in the prosecution of the father’s business. We hold that the contributory negligence of Wolfmeyer is not imputable to the plaintiff and that the plaintiff is entitled to recover.

Upon the question of damages, the evidence showed that the automobile was worth $275 when loaned to Wolfmeyer; that it would cost more than that amount to place it in a serviceable conditiоn, and that after the accident it was worth only $25 for junk. The court found in accordаnce with this testimony, and rendered judgment in favor of the plaintiff for $250. This testimony was disputed only by that of the defendant, who, concededly, had no special *87knowledge of the cost of repairing the automobile. The finding of the court-was well sustained by the evidence and cannot be disturbed.

By the Court. — Judgment affirmed.