Reiter v. Grober
181 N.W. 739
Wis.
1921
Check Treatment
ViNjE, J.

We have carefully examined the evidence with reference to the ownership of the. automobile with .the result that we think .the trial court correctly decided that issue. But if it did not the-legal questions presented would be the same, for the evidence is undisputed that Harvey Grober was the one primarily interested .in making the. social visit that' was made.": He alone- -received the inyitation and he in ."turn invited his father and brother to accompany him'. This they didas-his. guests.. ■ He drove th.e machine, and there is no-evidence-that'either .the father. ..or the brother interfered in the least with his management" of it or were called upon to do so. Á man may be a guest in his own automobile. So even if thje" f áthet" owned;"the" machiné, under the evidence he would naive to be'classed as a guést therein so far"'as this" trip *495is concerned. The same is true of the brother, William. As guests are they liable' to plaintiff for the negligence of Harvey, the driver? It is claimed that they are, under the doctrine of Prideaux v. Mineral Point, 43 Wis. 513. That case held that the driver of a private conveyance is the agent of a person therein to the extent that if his negligence contributes jointly with that of a third person to an injury received by the occupant there can be no recovery against the third person because the negligence of the driver is imputed to the occupant, thus creating contributory negligence barring recovery. It is now sought to extend this doctrine so as to make the occupant liable to third persons for. the negligence of the driver. That there is a substantial difference between the rule as announced in the Prideaux Case and the claim made by plaintiff is obvious. A person may well be content to trust his own safety to a driver, and yet not be willing to indemnify third persons who may suffer through his negligence. He may say, so far. as I am concerned his negligence is my negligence, but I do not agree to become responsible to others for his negligence. To extend the doctrine to that degree would make a guest in a private com veyance an insurer of third persons against the negligence of the driver.1 Instead of being invested with the liabilities of a guest he would shoulder those of a master. We not only decline to so extend the rule of Prideaux v. Mineral Point, 43 Wis. 513, in so far as it imputes the negligence of the driver, of a private vehicle to an occupant therein, b.ut we take this occasion to expressly overrule it. We do so now the more x-eadily because no litigant before the court suffers by reason of the repudiation of the doctrine. It had its inception in this state in Houfe v. Fulton, 29 Wis. 296, decided in 1871, where Mr. Chief.Justice Dixon says:

' “The only question^ here are whether there was any want of ordinary care on the part of the plaintiff or on the part of the person’with whom he was riding and who Wa’s driving the horse at the time of the injury, which also, contributes *496to the injury, . . . and whether the defect in the bridge was the sole cause of the injury.” Page 299.

The court held that since the evidence did not conclusively show such negligence on the part of the driver a nonsuit was improperly granted. This implied that negligence of the driver would bar recovery as stated in Prideaux v. Mineral Point, 43 Wis. 513, 526. But it was not until the decision in the latter case that this state became explicitly sponsor for the doctrine that an occupant in a private conveyance who has no control over the driver; who is not engaged with him in a joint undertaking other than traveling with him, and who stands in no blood, marriage, or other relation to him, has the negligence of the driver imputed to him so as to bar a recovery against a third person whose negligence contributed to the injury. The principle there announced has been steadily followed since, either by a re-affirmance thereof or under the rule of stare decisis. See Otis v. Janesville, 47 Wis. 422, 2 N. W. 783; Johnson v. Superior R. T. R. Co. 91 Wis. 233, 64 N. W. 753; Lockwood v. Belle City St. R. Co. 92 Wis. 97, 65 N. W. 866; Ritger v. Milwaukee, 99 Wis. 190, 74 N. W. 815; Olson v. Luck, 103 Wis. 33, 79 N. W. 29; Lightfoot v. Winnebago T. Co. 123 Wis. 479, 102 N. W. 30; Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629; Landry v. Great Northern R. Co. 152 Wis. 379, 140 N. W. 75; Hains v. Johnson, 154 Wis. 648, 143 N. W. 653; Sommerfeld v. C., M. & St. P. R. Co. 155 Wis. 102, 143 N. W. 1032; Kuchler v. Milwaukee E. R. & L. Co. 157 Wis. 107, 146 N. W. 1133; Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176 N. W. 767. In the Ktichler Case it was applied in all its rigor to a boy ten years old riding with his grandfather. So it must be admitted that there has been no substantial wavering on the question. In Lightfoot v. Winnebago T. Co. 123 Wis. 479, 102 N. W. 30, Mr. Chief . Justice Cassoday said that the rule had been steadily adhered to and that if a contrary rule was to prevail it was for the legislature to say so. Were it a rule of property we should *497certainly apply to it the rule of stare decisis. But it is not a rule of property. It is a pure judicial decree relating to liability for negligence, and the court would not for a moment give countenance to an argument that a wrongdoer relied upon it. We are therefore at liberty to change the rule in the interests of justice' and to conform to the overwhelming majority rule. See cases cited in note to 8 L. R. A. n. s. 597 et seq. and in L. R. A. 1915A, 763, supplementing it, and also 20 Ruling Case Law, 158 et seq. and cases cited in note 13; Id. 163; Whittaker’s Smith on Negligence (2d Am. ed. 1896, p. 508) ; 1 Shearman & Redf. Negligence (6th ed.) § 65a et seq.; 1 Thompson, Comm, on Negligence (2d ed.) § 499 et seq.; Buswell, Personal Injuries (2d ed.) § 105; Beach, Contributory Negligence (2d ed.) § 110; 1 Beven, Negligence (2d ed.) p. 203 et seq.; 29 Cyc. 548; dissenting opinion in Mullen v. Owosso, 100 Mich. 103, 58 N. W. 663, 23 L. R. A. 693. The above authorities show that only a few states adhere to the imputed negligence rule and some of them by a divided court.

The doctrine was founded upon the idea that the occupant voluntarily made the driver his agent for the trip by accepting a ride with him; — that he trusted his safety to him and thereby became so identified with him that the driver’s negligence became his own. While there is some ethical ground for this idea it has never received extended judicial approval, and it has been pointed out that it rests upon no sound legal basis either as to agency or identity; that the driver as well as the third party become tortfeasors toward the occupant when he is injured lw their joint negligence, and that he can pursue either or both.

The rule has received severe criticism by‘many text-writers. See 1 Shearman & Redf. Negligence (6th ed.) p. 166 et seq.; 1 Thompson, Comm, on Negligence (2d ed.) § 499. Strange to say, in spite of the fact that Mr. Chief Justice RyaN pointed out in the Prideau.v Case that it might not be applicable to public conveyances, the Wisconsin rule *498has often been discussed as though it applied to them. The case of Thorogood v. Bryan, 8 C. B. 115, applied to public conveyances — omnibuses,—and it has been generally conceived that, since that case has been discredited by English and American courts (see text-writers cited above), the same discredit has attached 'to the rule of imputed negligence declared in the Prideaux Case. Our court has never applied the rule to public conveyances and has negatived such application. Landry v. Great Northern R. Co. 152 Wis. 379, 140 N. W. 75; Ellis v. C. & N. W. R. Co. 167 Wis. 392, 167 N. W. 1048; Bakula v. Schwab, 167 Wis. 546, 168 N. W. 378. This much charity requires to be said in behalf of the doctrine now to be laid at rest after a-vigorous life of fifty years.

When and under what circumstances the occupant may be guilty of contributory negligence or engaged in a joint undertaking with the driver or stand in such relation to him that the negligence of the driver may be imputed to him it is not now necessary to discuss.

Only so much of the Prideaux Case is overruled as imputes the negligence of the driver to an occupant in a private conveyance who has no control over the driver; is not engaged in a joint undertaking with him; is guilty of no negligence himself; and stands in no other relation to him requiring his negligence to be imputed to the occupant.

By the Court. — Judgment affirmed.