American Family Mut. Ins. Co. v. Shannon

• Court: Wisconsin Supreme Court
• Writing for the Court: STEINMETZ; Wodicka testified that just before the accident he had been northbound on Racine Street, preparing to turn left into the parking lot to the west. It had been his intention to pass over to the next driveway to the south, exit onto the stree
• Citation: American Family Mut. Ins. Co. v. Shannon, 120 Wis.2d 560, 356 N.W.2d 175 (Wis. 1984)
• Decision Date: 30 October 1984
• Docket Number: No. 83-1368,83-1368
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff-Appellant, v. John L. SHANNON, Defendant-Respondent.

Page 175

356 N.W.2d 175

120 Wis.2d 560

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff-Appellant, v. John L. SHANNON, Defendant-Respondent.

No. 83-1368.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 3, 1984.

Decided Oct. 30, 1984.

Daniel L. Smart and Kingston & Smart, Mukwonago, for plaintiff-appellant; Christopher T. Kolb, Mukwonago, of counsel.

Louis F. Gerard and Gerard & Gerard, S.C., Racine, for defendant-respondent.

STEINMETZ, Justice.

The issue in this case is whether a trial court, sitting as the trier of fact, can rely on an unrequested, unannounced, unaccompanied and unrecorded view of an accident scene in assessing the evidence produced at trial.

At approximately 12:01 a.m. on the morning of August 15, 1981, a collision occurred in the town of Mount Pleasant in the northbound lane of Highway 32, also known as Racine Street. David J. Wodicka stated to police who arrived at the scene that he had been traveling northbound on the street, preparing to stop and turn left into a parking lot, when his car was struck from the rear by John L. Shannon's vehicle. Shannon also gave a statement to the police. He reported that he had been traveling northbound on the street and struck the vehicle ahead of him. No witnesses came forward at the scene.

Eleven months later, on July 21, 1982, a deposition was taken of Melvin Griffin who testified that he had witnessed the accident and that he had observed Wodicka's car backing out of the parking lot on the west side of Racine Street. He reported that the car backed into the northbound lane and into Shannon's line of travel.

On October 20, 1982, Shannon testified in a deposition that Wodicka's vehicle had backed out of the lot and into his line of travel. This was the first time he mentioned this fact. He had previously told the police of striking a vehicle ahead of him and had told an agent for Wodicka's insurer five days after the accident that Wodicka "had to be going left" and "traveling the same direction" as his own and that it came to a stop prior to the collision. On neither occasion did he mention the Wodicka car was backing out of a parking lot.

Suit was brought by American Family Mutual Insurance Company in subrogation against Shannon. The defendant counterclaimed. Trial was held without a jury before the Honorable Dennis J. Flynn, circuit court of Racine county, on May 27, 1983.

Wodicka testified that just before the accident he had been northbound on Racine Street, preparing to turn left into the parking lot to the west. It had been his intention to pass over to the next driveway to the south, exit onto the street again, and then proceed southbound on Racine. Considerable debate occurred as to whether it was physically possible to execute that maneuver. Shannon maintained that access between the two driveways was blocked making the maneuver a physical impossibility. At the close of trial, after all the evidence had been presented and closing arguments completed, Judge Flynn went to the scene of the accident. The parties and their counsel were not made aware of this fact until Judge Flynn rendered his decision from the bench.

On May 27, 1983, the trial court stated: "The Court when we took a break had a chance actually to go to the scene, and it took me about 10 or 15 minutes. And I reviewed consistent with all the testimony that had been received, I reviewed what actually was there."

Based on the court's view of the accident scene, the court held:

"It appears to be an absolute physical impossibility for the plaintiff to make the U-turn that he's testified to, and then on cross-examination he remained consistent, both in direct and cross-examination, but the physical facts--the point I'm making is the physical facts tend to be supportive of the basic proposition of the theory of the defendant, and conversely, they tend to rebut the theory as proposed by the plaintiff.

"Based on my review again of all the evidence presented, the evidence here, an analysis of the law, the Court makes a factual finding here that at the time of the accident, the plaintiff was in fact backing his vehicle out of the area by driveway No. 3 on the exhibit and across the southbound lane of Racine Street and into the northbound lane of Racine Street where the accident in fact occurred."

Judgment was entered on June 27, 1983, for the defendant with the court apportioning negligence as 75 percent to Wodicka for negligence in management, control, lookout and speed in backing his vehicle, and 25 percent to Shannon for negligence in management and control.

American Family Mutual Insurance appealed to the court of appeals and the court of appeals certified this issue to this court. We accepted certification, 118 Wis.2d 832, 352 N.W.2d 214 (1984) and reverse the trial court, remanding the case for a new trial. We hold the trial court may view a scene but only after it notifies the parties and provides them with an opportunity to be present at the time of view. The judge, in making an unrequested, unannounced, unaccompanied and unrecorded view of the scene, gathers evidence used to determine the credibility of witnesses that is not part of the record, and, therefore, is an error of law. " 'If a judge bases the exercise of his discretion upon an error of law, his conduct is beyond the limits of discretion.' " Beberfall v. Beberfall, 44 Wis.2d 540, 544, 171 N.W.2d 390 (1969), quoting State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733 (1968).

Whether a trial court, sitting as the trier of fact, can rely on an unrequested, unannounced, unaccompanied and unrecorded view of an accident scene in assessing the evidence produced at trial is a question of law that we review independently. LePoidevin v. Wilson, 111 Wis.2d 116, 121, 330 N.W.2d 555 (1983); First Nat. Leasing Corp. v. Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).

There is no contemporary Wisconsin precedent on this issue. In his brief, Shannon points to two Wisconsin cases that purport to deal with the issue at hand, Tiede v. Schneidt, 105 Wis. 470, 81 N.W. 826 (1900) and Kremer v. Thwaits, 105 Wis. 534, 81 N.W. 654 (1900). In Tiede v. Schneidt this court noted:

"The learned trial judge manifestly tried to ascertain the truth, and find accordingly. It is recited in the findings that, after the cause was tried, and while holding it under advisement, he visited and viewed the premises on three separate occasions, and while the establishment was in operation, and made the findings after having fully considered the matter. Such views enabled the court to weigh and appreciate the evidence in the case much better than otherwise. We assume that was the only purpose of such views, and so they were permissible. The actual conditions of the plant when in operation and when idle were, manifestly, more convincing than the statement of witnesses as to what they did or did not smell at certain times and distances from the plant." 105 Wis. at 479, 81 N.W. 826.

This court is not bound by its own dicta. Reiter v. Dyken, 95 Wis.2d 461, 474, 290 N.W.2d 510 (1980); State ex rel. Ekern v. Dammann, 215 Wis. 394, 403, 254 N.W. 759, 762 (1934). A dictum is a statement not addressed to the question before the court or necessary for its decision. In Tiede v. Schneidt, neither party assigned any error to the trial court's action. This court in Tiede was not asked to review the propriety of the trial court's view of the premises. Whether or not such act was proper was not necessary for that court's decision and is therefore dictum. Consequently, we are not bound by the quoted statements from the Tiede case.

In Kremer v. Thwaits, 105 Wis. 534, 538-39, 81 N.W. 654, this court stated:

"Some complaint is made for that the judge, while the matter was pending, made a personal inspection of the mortgaged premises, which he certifies materially aided him in reaching his decision. We fail to discover any prejudicial error in this circumstance. Even if, as independent information upon the subject of value, it was improper to be considered, such inspection may greatly aid the judge in understanding and weighing the evidence before him in the form of affidavits attempting to describe methods of division of the premises, and the adaptability and value of the buildings upon such subdivision. This purpose is recognized as even justifying inspection by a jury. If necessary to sustain the order, we should not hesitate to indulge in a presumption that the information thus acquired was only so applied. Why should not the judge use his knowledge of the premises to test the force of an affidavit as to their situation and value,...