McGee v. Hahn

| Wis. | Feb 8, 1927

Rosenberry, J.

The plaintiff seeks recovery in this case on the authority of Hopkins v. Droppers, 184 Wis. 400, 198 N. W. 738. In the view that we take of the case we shall not be required to consider the application of that case to the circumstances of this, for we find no evidence which sustains the answer of the jury to the first question by which the jury found that the defendant Ben Hahn was in the habit of permitting his son Earle to drive the truck without being accompanied by an adult person. The only evidence in the case which tends to sustain the jury’s findings in that regard is an admission testified to by the plaintiff, claimed to have been made by the defendant shortly after the date of the accident. Plaintiff testified: "

“I asked him if he wanted to settle or what he wanted to do about it, and he said that he didn’t want to say anything because he thought thatT was as much in the wrong as the boy was; that he figured that the boy could drive the car as good as he could; that he had taken the girl to work to the factory in Hartford over a year.”

It appears without dispute that Earle had taken his sister on one occasion to the factory and that he had driven the car home unaccompanied; that he had been reprimanded therefor; that his father had repeatedly warned him not to take the car out, and that he had not taken the car out on any other occasion; that on the night in question the father had specifically directed the son not to take the truck from the garage; that he had done so because another boy was there playing and he feared under such circumstances the boy might be tempted to take the car. It appears that the boys were not going any distance on the highway, but were turning into the driveway of an adjoining neighbor. There is no evidence in the case which brings it within the rule of the Hopkins Case or shows liability on the part of the defendant Ben Hahn on any account whatever. The Hopkins Case was decided upon demurrer, and the facts as stated in the complaint showed a long-continued violation of the law, purchase of the motorcycle by the father, practically a gift of it to the son, and an encouragement for him to use it in violation of the law. It appears without dispute that the car had not been owned a year by the defendant Ben Hahn, and the admission was made under circumstances which give it little evidentiary value. When taken in connection with all the circumstances of the case, it is insufficient to sustain the finding of the jury.

By the Court. — Judgment appealed from is reversed, and cause remanded with directions to dismiss the complaint.