October 11, 1939 —
November 7, 1939.
APPEAL from an order of the circuit court for Waukesha county: C. M. DAVISON, Circuit Judge. Reversed.
For the appellant there were briefs by Salen Brenner, and oral argument by Clayton A. Cramer, all of Waukesha.
For the respondents there was a brief by Frame Blackstone of Waukesha, and oral argument by John E. Blackstone and H. J. Frame.
The action was commenced on April 21, 1938, by the plaintiff, Delia Huebner, against the defendants, A. Fischer, Jr., and his insurance carriers, to recover damages for injuries sustained by her while riding as a guest in Fischer's automobile. Trial was had to the court and a jury. The jury found, in substance, that Fischer, hereinafter called the "defendant," at and just previous to the time of the accident, was negligent in operating his automobile in respect to, (a) speed, and (b) turning his automobile to the left at the culvert; and that such negligence constituted causes of the plaintiff's injuries; that the plaintiff was negligent in respect to, (a) giving the defendant a warning, (b) handling the latch of the door as she did, and (c) closing the door as she did; that handling the latch of the door as she did, and closing the door as she did, were causes of her injuries, but that her failure to give the defendant warning was not a cause of her injuries. The jury assessed the plaintiff's damages, and further found that sixty per cent of the total causal negligence was attributable to the defendant and forty per cent thereof was attributable to her. Upon the coming in of the verdict, the plaintiff moved for judgment thereon. The defendant moved in the alternative, (1) for judgment notwithstanding the verdict; (2) to change certain answers of the jury and for judgment on the verdict as so changed; and (3) for a new trial. It appears that at the conclusion of the plaintiff's case, the defendant had moved for a nonsuit and at the closing of the testimony had moved for a directed verdict, both of which motions were denied.
The plaintiff was examined adversely before trial. She was asked certain questions regarding the defendant's drinking intoxicating liquor at a tavern shortly before the accident occurred. Her answers tended to show that the defendant had had three or four whiskey sours. Although much use was made of the transcript of the adverse examination by the attorneys for the defendants in cross-examining the plaintiff upon the trial, the questions and answers concerning the defendant's drinking shortly before the accident were not referred to by either the defendants' or the plaintiff's attorneys. The court granted the defendants' alternative motion for a new trial in the interest of justice, specifying as the only reason therefor the defendants' failure to explain to the court anything about the defendant's drinking at the tavern just previous to the accident, despite the fact that the court had very carefully read the adverse examination during the trial. In granting a new trial the court said:
"This testimony should be brought before the jury and before the court and it is very important on the point of assumption of risk. I feel that in this case justice has not been done and that a new trial will have to be granted and is granted in the interest of justice.
"I am quite satisfied that if the evidence contained in this adverse examination was brought before the jury or the court a question on the assumption of risk would have to be in the special verdict. No such question was in the special verdict and on a new trial the evidence in the adverse examination should be brought before the court and the jury and no doubt a question on assumption of risk should be submitted in the special verdict.
"Justice has not been done to the defendant in this case due to the fact that the testimony in the adverse examination as to Fischer's intoxication was not presented. Therefore I again reiterate that in the cause of justice there should be a new trial granted, which accordingly is ordered.
"It is strenuously argued on the part of the plaintiff that because the testimony in the adverse examination as to Fischer's intoxication was not presented to the jury or the court that that was the fault of the defendant's attorney. That is all very well, maybe, but the interests of the defendant must be safeguarded and it is proper and right in the protection of his interests that a new trial be granted."
From an order granting a new trial because justice had not been done, entered January 20, 1939, the plaintiff appealed. The defendants, pursuant to the provisions of sec. 274.12, Stats., moved for a review of the court's refusal to direct a verdict, to grant their motion for judgment notwithstanding the verdict, and to change the answers to certain questions in the verdict.
On the plaintiff's appeal from the order granting a new trial in the interest of justice, we are of the opinion that the court erred in ordering a new trial. It clearly appears that the court ordered a new trial for the reason that the testimony in the adverse examination relating to the defendant's drinking intoxicating liquor was not specifically called to its attention or offered in evidence. The defendant did not offer the questions and answers in evidence, nor did the plaintiff in any manner refer to them. Upon the trial the defendant was asked no questions relating to his drinking shortly before the accident, and the plaintiff was asked no questions relating to that incident. The plaintiff did not assert in her complaint that the defendant had been drinking, or that his driving was in any way affected by his having drunk intoxicating liquor before the accident. It thus appears that neither party considered that any question as to the intoxication of the defendant was in the case. In our view, the failure of the defendant to drag that issue into the case, a course apparently deliberately pursued, did not constitute a sufficient ground upon which to base an order for a new trial in the interest of justice.
While an order for a new trial in the interest of justice is highly discretionary ( Mellor v. Heggaton, 205 Wis. 42, 236 N.W. 558; Besser v. Hill, 224 Wis. 211, 271 N.W. 921), it ceases to be so when a trial court's views are grounded upon an erroneous view of the law. Crombie v. Powers, 200 Wis. 299, 227 N.W. 278; Kramer v. Bins, 205 Wis. 562, 238 N.W. 407; Besser v. Hill, supra; Steiger v. Phipps, 228 Wis. 1, 278 N.W. 404; State ex rel. Mahnke v. Kablitz, 217 Wis. 231, 258 N.W. 840.
We are therefore of the opinion that the order of the trial court granting a new trial in the interest of justice was erroneous and must be reversed.
Upon the defendants' motion to review the court's refusal, (1) to direct a verdict in their favor, (2) to enter a judgment dismissing the complaint notwithstanding the verdict, and (3) to change the answers of the jury which found the defendant guilty of causal negligence and that sixty per cent thereof was attributable to him, we are of the opinion that the court erred in refusing to grant each of such motions. It is now established that a respondent, upon an appeal from an order granting a new trial, may move for a review of other orders asserted by him to have been erroneous notwithstanding the fact that he had moved for a new trial, and to that extent got what he asked for. Johnson v. Rudolph Wurlitzer Co. 197 Wis. 432, 439, 222 N.W. 451; Julius v. First National Bank of Appleton, 216 Wis. 120, 122, 256 N.W. 792; Burns v. Weyker, 218 Wis. 363, 366, 261 N.W. 244. In Julius v. First National Bank of Appleton, supra, the court said:
"On such a motion noticed on an appeal taken by an adverse party from an order which granted a new trial, the respondent may have a review of other orders of which he complains, including rulings denying his motions for a directed verdict, or for judgment notwithstanding the verdict, even though the new trial was granted on his motion." Citing Johnson v. Rudolph Wurlitzer Co., supra.
Our conclusion that the defendant's motions should have been granted requires a recitation of all of the evidence favorable to the plaintiff. On February 26, 1937, the plaintiff accompanied the defendant on an automobile trip from Oconomowoc to the village of Okauchee where the defendant delivered a coat to a Mrs. Barrett at a tavern. Upon the return trip, when entering Highway No. 19, the defendant was accused of not stopping at the arterial. The name or official identity of the accuser does not appear. As a result of the accusation, Fischer became very angry and an argument followed. The accuser drove to the Little Prison tavern located near Okauchee, and the defendant followed in his automobile. They there again discussed the asserted failure of the defendant to stop at the arterial. At that time the defendant's automobile was parked to the left of the automobile belonging to the accuser. The defendant reached over in front of the plaintiff and opened the right-hand door so that he might talk to his accuser. The argument was continued for some time. Finally the accuser went into the Little Prison tavern. The defendant then started his automobile and the plaintiff closed the door while the automobile was in motion. The defendant's automobile was a Ford coach having wide doors which opened at the front and swung out and to the rear. The handle which operated the latch mechanism at the door on plaintiff's side was situated close to the front of the door. When the plaintiff closed the door, she thought that she had fully closed it. The catch or latch was the double one usually found on automobile doors. After proceeding for about a mile, at a speed estimated by both parties to be about fifty miles per hour, and just before reaching an incline in the highway over a bridge or culvert, the defendant turned his automobile to the center of the road in order better to negotiate the incline. After passing over the incline, the defendant turned his automobile back to his right side of the road. When the defendant turned to the left and then to the right, the plaintiff swayed in the automobile and then discovered that her coat was caught in the door. The plaintiff said nothing to the defendant about the door or about her coat being caught in it. She reached forward and put her hand on the door handle, whereupon the door flew open and pulled her out of the automobile. The plaintiff had often ridden with the defendant over that same road and was familiar with the incline at the culvert and the manner in which the defendant drove over it. She was familiar with the way the door opened and knew there was a double catch on it.
It is very clear that the plaintiff's injuries were not caused by the speed of the automobile, even assuming that driving over the incline at about fifty miles an hour may have been negligent. It is also clear that the defendant's turning his automobile to the left just before reaching the incline of the culvert, assuming that the turn was sharp enough to be negligent, was not a cause of the plaintiff's injury. All that the turning to the left and then to the right did was to apprise the plaintiff of the fact that her coat was caught in the door. Without saying anything to, the defendant, she reached forward and put her hand on the handle of the door which controlled the catch. There is no suggestion that the catch was defective. Upon her taking hold of the handle, the door flew open and pulled her out upon the ground. Putting her hand on the handle of the door, obviously for the purpose of opening the door and releasing her coat, which resulted in the door swinging wide open and pulling her out, was the sole cause of her injury. The jury found that she was guilty of causal negligence in handling the latch of the door as she did and in closing the door as she did. While she may have been negligent in closing the door as the parties were leaving the Little Prison tavern, that obviously did not cause her injury. It was only when she discovered that her coat was caught in the door and that the door was not fully closed that she put her hand on the handle, releasing the catch and permitting the door to swing wide open. Had she not put her hand on the door handle the accident would not have happened. We think it, clear, therefore, that the trial court should have granted defendant's motion for a directed verdict upon the closing of the testimony. Not having done so, the court should have ordered judgment dismissing the plaintiff's complaint, notwithstanding the verdict, or changed the answers of the jury which found that the defendant's negligence as to speed and turning his automobile to the left at the bridge (culvert) were causes of the plaintiff's injuries. Since under the undisputed facts of this case no finding of causal negligence on the part of the defendant is supported by the evidence, the court should have changed the answers which found that sixty per cent of the causal negligence was attributable to the defendant, to "no per cent," and that forty per cent of the causal negligence was attributable to the plaintiff, to "one hundred per cent." Since we are of the opinion that no causal negligence on the part of the defendant was shown, we need not consider the contention of the defendants that the plaintiff, under the undisputed facts of this case, assumed the risk of the defendant's speed or his turning to the left just before he reached the culvert incline.
By the Court. — The order granting a new trial is reversed. Upon the defendants' motion for review, the cause is remanded with directions to grant the defendants' motion to change the answers in accordance with the opinion and to dismiss the plaintiff's complaint upon the merits. The defendants to have costs in this court.