194 Wis. 12 | Wis. | 1927
The plaintiff, Mrs. Smalley, her husband, the defendant Frank Smalley, and the appellant, Sim-kins, all lived in Manitowoc and had been friends for a number of years. A few days before, the three arranged to drive to Chicago or its vicinity in Simkins’ automobile, each having plans for spending the holidays. At Simkins’ suggestion it was agreed that each of the men was to drive half of the way.
A short time after defendant Smalley had relieved the defendant Simkins and while turning to avoid a truck, the car, then going about thirty miles per hour, commenced to skid, collided with a telegraph pole, and Mrs. Smalley was thrown out and seriously injured. The concrete highway on which they were riding was icy in places and Mrs. Smalley
Assuming that defendant Smalley was negligent and caused the injury, yet the judgment here challenged can only be supported upon the theory that at the time of the injury plaintiff's husband in driving the car was an agent of Simkins. The facts compel us to reach the conclusion as a matter of law that at the time of the injury there was no such relationship between defendants so that any negligence by such driver could be chargeable against the owner.
If appellant had loaned his car to Mr. and Mrs. Smalley for the purpose of tins trip and had not accompanied them, there would have been a plain case of mere bailment and no liability in the owner, as bailor, for the negligence by the bailee in the driving of the car. Calumet Auto Co. v. Diny, 190 Wis. 84, 208 N. W. 927. That Simkins drove the car part way and was riding in the front seat at the time of the accident does not present any substantially different situation. Each of the men was an experienced driver, and appellant, Simkins, at no time undertook or assumed to direct, as principal, the defendant Smalley as driver. The only thing here that can be recognized under the law as the proximate cause of the injury was the carelessness of the driver, Smalley. The mere fact of ownership of the car by Simkins is not of itself sufficient to create such a liability. Zeidler v. Goelzer, 191 Wis. 378, 383, 211 N. W. 140; Papke v. Haerle, 189 Wis. 156, 158, 207 N. W. 261.
The two Smalleys and Simkins were taking the trip for separate and distinct purposes of their own. While driving, Frank Smalley was as much the agent of the plaintiff as he was that of Simkins. The plaintiff ought not, therefore, be permitted to assert an alleged agency of her husband, the driver, for the owner of the car, and ignore an exactly similar relationship existing at the same moment between her husband and herself. In substance Simkins was loaning the
Finding, therefore, no proper warrant in the record to support the determination reached below, the judgment must be set aside.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint as against the defendant Sim kins.
