Opinion
November 3, 1953 —
December 1, 1953.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellant there was a brief by Gold McCann of Milwaukee, and oral argument by Ray T. McCann.
For the respondents Arthur Timm and others there was a brief by Sydney M. Eisenberg, attorney, and Larry J. Ratzel of counsel, both of Milwaukee, and oral argument by Mr. Eisenberg.
For the respondents Warren J. Rahn and Lumbermens Mutual Casualty Company there was a brief by Kivett Kasdorf, attorneys, and Austin W. Kivett of counsel, and oral argument by Austin W. Kivett and Nonald J. Lewis, all of Milwaukee.
Action by guests in an automobile to recover damages from their host and the driver of another automobile for injuries received when the host's car ran off the highway. A special verdict determined that the injuries were caused by the negligence of the host, alone. The company carrying the insurance on the host's car has appealed.
The facts surrounding the accident are in controversy but evidence which the jury had a right to believe supports the following account of what occurred. The narrative is compiled from the briefs of the parties.
On March 22, 1951, at about 11:30 p. m. plaintiffs-respondents were injured while passengers in an automobile owned and operated by Russell Schuenke, which had been insured by appellant, Ohio Casualty Insurance Company. The other vehicle involved in the accident was owned and operated by defendant-respondent, Warren J. Rahn, who was insured by Lumbermens Mutual Casualty Company, which was also named as a defendant in this action. Russell Schuenke, Patrick Flynn, one of the respondents, and one Gleason, had been at the New Yorker Bar that evening. They were met there by respondent Arthur Timm. They left the New Yorker Bar located on North Fifth street, between West Michigan street and West Wisconsin avenue, sometime around nine o'clock of the evening of the accident, and went to the automobile of Russell Schuenke, which was located on Sixth street, between Wisconsin avenue and Michigan street. The four entered the automobile and the party drove to Richard's Bar, located at 3160 North Green Bay avenue. At the Richard's Bar they had a bottle of beer; and not finding a friend of Flynn at the Richard's Bar they re-entered the automobile and proceeded to the place of the accident. They were headed for the Ranch, a tavern-restaurant located on West Capitol drive, some distance beyond the city limits. The accident occurred before they reached the Ranch, after the car had traveled approximately ten miles from the Richard's Bar. Schuenke drove to West Capitol drive and proceeded westerly toward the scene of the accident; and as the car left the city limits, Schuenke accelerated to approximately 50 miles an hour. The car proceeded at that rate of speed until it approached the vehicle of respondent, Warren J. Rahn. As the Schuenke car approached to within 450 feet to the rear of the Rahn car the latter car was proceeding at a rate of approximately 40 to 45 miles an hour. Both cars were proceeding westerly along Capitol drive, which at that point consists of two paved strips, each 20 feet in width, separated by a parkway or boulevard. The cars were traveling in the north lane of the westbound strip.
Rahn intended to make a left turn from Capitol drive at a point approximately a quarter to a half mile from the place of the accident. As he approached the location of the accident, Rahn was driving 40 to 45 miles per hour, in the north, or driving lane. In his rear-vision mirror he saw the lights of the Schuenke car about 150 feet behind and also in the driving lane. He extended his arm through the left window because he thought the Schuenke car was a safe distance behind. He then started to turn into the left, or passing lane, but kept his hand extended from the time he left the right lane until he entered the left lane, during which time he covered a distance of 150 to 200 feet. From the time he started to deviate until his car was entirely in the passing lane, he had traveled 300 to 350 feet. He then heard the blast of a horn from behind, and started to swerve back to the right-hand lane. From the direction of the horn he could determine that the car was in the same lane. He swerved right and had traveled 50 to 75 feet before he heard the impact. He did not travel 75 feet from the time he heard the horn until he started to turn to his right. His automobile was back in the driving lane at the time he heard the impact. He then drove west about 300 feet and parked on the shoulder. Schuenke told the deputy sheriff he saw Rahn's left-hand signal and that his car was still going about 50 miles an hour when he struck the tree and rolled over. Plaintiff Timm testified on adverse examination that the Schuenke automobile was about 100 feet behind the Rahn car when it started to leave the right-hand lane to go to the left-hand lane. Flynn testified on adverse examination that Schuenke blew his horn and the automobile decelerated rapidly as if the brakes were being applied when the Schuenke automobile was 150 feet behind the Rahn car. The deceleration continued until Schuenke struck the tree. At no time did the Schuenke automobile come alongside the Rahn automobile but collided with the tree about one and one-half car lengths behind the Rahn automobile.
This evidence, if believed by the jury, as it appears to have been, supports the verdict that there was no failure to use ordinary care on the part of the defendant Rahn in respect to management and control, lookout, or deviating from the driving lane into the passing lane, and that Schuenke did not exercise ordinary care not to increase the dangers assumed by plaintiffs in respect to his management and control of the automobile and his lookout. Such failure on Schuenke's part, the jury answered, was an efficient cause of plaintiffs' injuries but the failure did not last long enough to give plaintiffs opportunity to protest against Schuenke's manner of driving. The jury also found that the plaintiffs were not themselves guilty of any want of ordinary care. The special verdict attributed 100 per cent of the negligence causing the accident to Schuenke and found plaintiff Timm's damages were worth $2,200 and Flynn's $3,000.
The action was tried in the civil court of Milwaukee county before Civil Judge ROBERT C. CANNON. He entered judgment on the verdict for plaintiffs and against Schuenke's insurance carrier. An appeal was taken to the circuit court for Milwaukee county. The present appeal is from the judgment of the circuit court which affirmed that previously rendered by the civil court.
The action presented an unusual feature in that Schuenke was not made a party defendant, possibly because he was about to be taken into military service. A few days before he was to go, a deposition to perpetuate his testimony was taken at the instance of the plaintiffs. Counsel for the appellant, Ohio Casualty Insurance Company, represented their client at that proceeding. Appellant's first assignment states that the trial court committed reversible error in admitting the deposition in evidence because, counsel submits, statutory notice of the taking of the deposition was lacking, the deposition was not read or signed by deponent, and counsel for appellant Insurance Company was not permitted to cross-examine deponent, its assured. Interesting as the answers to such questions may be, we consider that appellant waived the alleged errors by failure to make timely objection when the deposition was offered in evidence. The record shows only that at the start of the trial counsel stated that he was raising the question of failure to have the deposition read and signed. The judge and the attorneys then went into chambers and there is no record of what took place there. When proceedings were resumed in the courtroom the deposition was read into evidence without objection by appellant. Whether counsel concluded that an objection could not be sustained, or whether he wanted the jury to hear the favorable version that Schuenke gave of his own conduct, of course this court cannot know. We do observe that the appellant had no other witness to testify to Schuenke's exercise of due care. At any rate we do not consider that exception is preserved for appeal by the statement to the trial court without more, as here, that counsel is raising a question.
Appellant submits that the evidence establishes respondent Rahn's causal negligence as a matter of law. The statement of facts as we have already set them out, having support in the evidence, decides this contention contra.
Appellant next asserts that prejudicial error resulted from the court's instruction to the jury that the burden of proof of Rahn's lack of ordinary care, and the causal effect of such lack as the jury might find, was upon plaintiffs and the "defendant Schuenke." This was error, to be sure, for Schuenke was not a defendant and had no burden. But we think it is quite clear that no prejudice to the real defendant Ohio Casualty Insurance Company could or did result from the misstatement. At the time Schuenke's deposition was taken counsel made it abundantly clear that Schuenke was not a defendant, resting his alleged right of cross-examination on that fact, and the record of those proceedings and counsel's protestations was read to the jury. All the other references to Schuenke in the instructions defined him as the driver, not as a defendant; and when he was mentioned in the questions of the special verdict he was called the driver. If the jury noticed the slip of the tongue at all in the two instances complained of it is most improbable that it caused any confusion. But even if confusion concerning Schuenke's status had resulted we are unable to see how the true defendant was prejudiced by an instruction which relieved it of the burden of proof properly its own and in no way deprived it of the advantage of any proof that there was, brought forward by anyone, of Rahn's causal negligence.
Appellant asks this court to order a new trial in the interests of justice because of improper remarks, questions, and comments by counsel for plaintiffs in the presence of the jury. It refers us to a multitude of such objectionable items in the record. When they take the form of questions, defendant's counsel regularly objected and was as regularly sustained by the trial court. We cannot commend plaintiffs' counsel for such tactics, but that defendant's cause was prejudiced thereby is a different question. An able trial judge heard the numerous controversies and observed the conduct of the participants. The present question was presented to him in defendant Insurance Company's motion after verdict and he denied it. On the record as it comes to us the prejudice rising from this particular conduct is against the plaintiffs rather than against the defendants. The jury did, in fact, absolve defendant Rahn, showing that counsel's methods did not benefit his client at least in relation to that defendant. We are unable to find that a miscarriage of justice was the probable result of any impropriety which plaintiffs' counsel may have indulged in.
Lastly, appellant submits that the damages awarded the two plaintiffs are excessive. Their injuries were neither great nor permanent but we do not consider the damages are beyond anything which a conscientious, properly instructed jury could allow upon the evidence in this case.
By the Court. — Judgment affirmed.