Opinion
April 8, 1952 —
May 6, 1952.
APPEAL from a judgment of the circuit court for Sauk county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
Vaughn S. Conway and Kenneth H. Conway, both of Baraboo, for the appellant.
For the respondents there was a brief by Langer Cross of Baraboo, and oral argument by H.M. Langer and Clyde C. Cross.
Action for damages by plaintiff Sadie Watland against defendants Orville Wittenburg and Farmers Mutual Automobile Insurance Company, insurer of the Wittenburg automobile, for injuries sustained in an accident occurring while plaintiff rode as a guest in the Wittenburg car. Suit was also brought against Herbert Leary, owner of the other car involved in the collision, State Farm Mutual Automobile Insurance Company, Leary's insurance carrier, and Elaine St. Clair Radel, driver of the Leary car. From a judgment dismissing the complaint, plaintiff appeals.
Plaintiff operated a tavern, "Alma's Inn," near Middleton, Wisconsin, at which defendant Wittenburg arrived about 7 p.m. on the evening of the accident. He had two drinks of whiskey while there, one of them with the plaintiff, after which they drove north on Highway 12 to the "Rotunda." There each of the parties had three more drinks of whiskey. They then proceeded to "Jimmie's Del Bar" and each had three more drinks followed by a steak dinner and one drink after dinner. Upon leaving the Del Bar they discovered it was snowing. On the way back to plaintiff's tavern, driving south on Highway 12, Wittenburg approached the intersection of that highway with east-west Highway 33, a right angle intersection. Highway 12 at this point is an arterial and vehicles traveling east or west on Highway 33 are required to stop at the intersection. Wittenburg was driving at a speed of approximately thirty miles per hour. He was familiar with the stop signs at the intersection and did not decrease his speed. Mrs. Radel, driving the Leary car in a westerly direction on Highway 33, went through the stop sign and was hit by the Wittenburg car in the intersection. Wittenburg did not see the other car until it came across the road in front of him, although the testimony showed that his view of approaching vehicles from that direction was not obstructed in any way for some distance. He made no attempt to brake his car or to turn left or right prior to the collision. The front of the Wittenburg car struck the right door and fender of the car operated by Mrs. Radel.
After the accident Wittenburg was given a blood test, pleaded guilty to a charge of driving under the influence of intoxicating liquor, and was convicted. Mrs. Radel was likewise convicted of drunken driving on a plea of guilty.
Prior to trial plaintiff settled her claims against the insurer of the car driven by Mrs. Radel and gave a covenant not to sue.
In its answers to questions 3 and 4 of the special verdict the jury found Wittenburg negligent as to lookout but that such negligence was not causal. It also found Wittenburg negligent as to driving his vehicle while under the influence intoxicating liquor and that such negligence was a cause of the accident. In its answer to question 5 the jury found that the plaintiff assumed the risk of her injury in respect to Wittenburg's negligence in driving while under the influence of liquor.
On motions after verdict plaintiff moved for judgment notwithstanding the verdict, or, in the alternative, that the court change various answers of the special verdict and enter judgment upon the verdict as so changed. She did not, however, move to change the findings of the jury with respect to Wittenburg's intoxication and its causal connection with the accident; nor did she move to change the answer with respect to her assumption of the risk in regard to his intoxication.
The primary question presented is that of assumption of risk. Wittenburg was found by the jury to have been causally negligent with respect to driving while under the influence of intoxicating liquor, and there was ample credible evidence upon which the jury could so find. Testimony of both Wittenburg and the appellant clearly showed that a great deal of whiskey had been consumed by them during the course of the evening. They were together during all of that time. Wittenburg was convicted of drunken driving at the time of the accident on his plea of guilty.
It is well established that a drinking-partner guest assumes the risk of injury incidental to a host's drunken driving. As was said in Schubring v. Weggen (1940), 234 Wis. 517, 521, 291 N.W. 788:
"Voluntary intoxication does not relieve one driving an automobile from his responsibility to care for others. No more should it relieve one voluntarily riding in an automobile from responsibility to care for himself. Voluntary intoxication in such case does not exempt one from the doctrine of contributory negligence. No more should it exempt one from the doctrine of assumption of risk. Contributory negligence and assumption of risk, if the former does not include the latter, are at least sufficiently related to bring both host and guest under the same rule as to nonexemption from responsibility. As intoxication of the host does not exempt him from responsibility for protection of others, so intoxication of the guest does not exempt him from responsibility for self-protection. This should be the rule in case of reckless misconduct as well as in conduct amounting only to ordinary negligence."
This case was cited in Gilbertson v. Gmeinder (1948), 252 Wis. 210, 213, 31 N.W.2d 160, where the court said:
". . . if Gmeinder was drunk, then as a matter of law Gilbertson, having been with him all during the time he was drinking, would assume the risk flowing therefrom."
Upon motions after verdict appellant did not dispute the findings of the jury respecting Wittenburg's intoxication, its causal effect, or appellant's assumption of the risk incidental thereto. Nevertheless, it is apparently counsel's contention that appellant could not assume the risk of Wittenburg's momentary negligence with respect to lookout, control, and being on the wrong side of the highway. We do not see how any such momentary negligent acts or omissions can be disassociated from Wittenburg's general state of intoxication, which was known or should have been known to her. She had been drinking with him all evening. When she voluntarily rode with him under those circumstances she assumed the risk of injury caused by his negligent operation of the automobile, whether such negligence was momentary or part of a course of driving conduct which would have warned her that he was in no condition to drive.
It is not necessary to consider appellant's contentions with respect to Wittenburg's negligence as to lookout, control, and being on the wrong side of the highway. Even if the facts had been such as to warrant the jury's finding that Wittenburg was causally negligent in all such respects, the appellant could not recover since she assumed the risk of all his negligent acts in operating the automobile when she voluntarily rode with him regardless of his intoxicated condition.
By the Court. — Judgment affirmed.