Opinion
March 5, 1965 —
March 30, 1965.
APPEAL from an order of the county court of Door county: EDWARD G. MINOR, Judge. Reversed.
For the appellant there was a brief by Byrne, Bubolz, Spanagel Pfankuch of Appleton, and oral argument by William S. Pfankuch.
No brief or appearance for the respondents.
This is an automobile accident case, wherein plaintiff-appellant sued for property damage to his vehicle. Defendants-respondents counter-claimed and alleged that plaintiff negligently caused Susan Harvey's personal injuries.
The accident occurred February 22, 1963, at or near the intersection of two city streets in Sturgeon Bay. Miss Harvey was leaving a filling station located at the intersection. There is a dispute in the evidence as to whether the accident occurred in the street or in the filling-station driveway.
The jury found that plaintiff was not negligent and that Susan Harvey was causally negligent, and attributed 100 percent of the causal negligence to her. The court, upon stipulation of the parties, found the damage to plaintiff's vehicle was $137.95, and that Miss Harvey's medical expenses were $578.73. The jury further found Miss Harvey's wage loss was $682.50 and her personal injuries "none."
Upon motions after verdict the trial court awarded a new trial in the interests of justice, pursuant to sec. 270.49, Stats.
The plaintiff appealed. The defendants-respondents did not file a brief or appear at oral argument.
The question of whether the trial court abused its discretion in granting a new trial is the sole issue presented.
From our review of the entire record, the brief and argument of the plaintiff are quite persuasive. However, because we have not had the benefit of a brief or oral argument from defendants, we decline to pass upon the matter on its merits but reverse under the statutory procedural rule.
Supreme Court Rule 57, sec. 251.57, Stats. provides:
"When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument."
We reverse, "as of course," pursuant to Rule 57. Fuller v. Fiedler (1963), 19 Wis.2d 422, 120 N.W.2d 700; Estate of Ohnstad (1962), 15 Wis.2d 361, 112 N.W.2d 917; Long v. Wallmow (1938), 226 Wis. 660, 277 N.W.2d 704.
By the Court. — Order reversed with directions to reinstate the verdict and enter judgment thereon.