216 Wis. 165 | Wis. | 1934
Defendants’ first contention is that there is no credible evidence that the defendant James Phillips was the agent of his codefendant, Anna Phillips. The second contention of defendants is that there is no evidence to sustain the jury’s finding of negligence upon the part of James Phillips. The nature of these contentions requires an examination of the facts in some detail.
James and Anna Phillips were husband and wife. In the year 1912 defendant Anna Phillips constructed a building for garage purposes upon property owned by her. The defendants had their living quarters upstairs. On the first floor they had an office and supply store, and a garage and workshop. It is the contention of the defendants that Anna Phillips was the owner and proprietor of the garage; that she ran the business, took care of the office, sold tires, and accessories, and otherwise had supervision and control of this business, which she is alleged to have owned. She had a mechanic, one Langendorf, who also sold gas, oil, tires, and accessories. It is her contention that her husband was engaged in the separate business of driving a taxi until 1929, from which time on he engaged in the business of towing
Coming to the issue of agency, we are of the opinion that this presented a jury question. Certainly the business relationship of husband and wife in this case leads to some suspicion that their activities were not as completely separate as claimed. Upon cross-examination it was disclosed that Mrs. Phillips knew very little about the garage business. She had no knowledge of the price of tires, what kind of oil she sold, the grades of oil, the kind of gas, or the grades. She kept no checking account, — no records of any kind. She did not know what part of Mr. Phillips’ income from his work she received, and it is reasonably to be inferred from the testimony that either at her request or with her acquiescence Phillips worked around the garage, sold oil, gas, and accessories, and otherwise furthered her interest as proprietor. The jury could reasonably conclude that on the occasion in question Phillips drove his car and transported the mechanic on her behalf and for the purpose of furthering her business. There is no evidence that she specifically requested this, but the whole course of dealings between the parties indicates that with her consent, whether with compensation or not does not appear, the husband did whatever appeared to be useful in promoting the interests of her business. The testimony sustains the conclusion of the jury that on tlie occasion in question Phillips was on his wife’s business, with her acquiescence and consent, and at her implied request.
It is next contended that the damages awarded Barbara Patterson are excessive. Barbara suffered a deep laceration of the left cheek, in addition to minor bruises and contusions. She was in the hospital one night and missed two
It is next contended that the plaintiff Barbara Patterson assumed the risk of her father’s high rate of speed. There is no evidence that this rate of speed had persisted long enough to call for her protest, assuming that a child ten years of age, riding with her father, should be held to have the same obligation to protest as an adult guest.
Another featüre of this case, not mentioned in the briefs, calls for comment here. The speed of Patterson, which was the only negligence on his part found by the jury, could not have been a contributing cause of this accident. Clark v. McCarthy, 210 Wis. 631, 246 N. W. 326. Had there been a motion to review, we would be compelled to hold that the negligent speed of Patterson could not be the basis for a 'reduction of his damages. In view of this, the question of assumption of risk becomes immaterial.
Complaint is made of an instruction in which the court characterized the plaintiff Barbara’s iftjuries as severe. This could not have been prejudicial. The injuries were conced-edly severe and the jury knew their precise character.
It is next contended that the court erred in failing to comply with a request of the jury to read the testimony upon a material issue. The case went to the jury at 4 o’clock on Saturday. The court called the jury into court at 7:20 p. m. and inquired as to their progress. The foreman reported that the jury had not made much progress, and said, “We
By the Court. — Judgment affirmed.