Anderson v. Horlick's Malted Milk Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Anderson v. Horlick's Malted Milk Co., 137 Wis. 569, 119 N.W. 342 (Wis. 1909)
• Decision Date: 26 January 1909
• Parties: ANDERSON v. HORLICK'S MALTED MILK CO.

137 Wis. 569

119 N.W. 342

ANDERSON

v.HORLICK'S MALTED MILK CO.

Supreme Court of Wisconsin.

Jan. 26, 1909.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Lars C. Anderson against Horlick's Malted Milk Company. From an order granting a new trial after the return of a special verdict, and from a judgment dismissing the cause without prejudice, defendant appeals. Reversed and remanded for entry of judgment in defendant's favor.

Timlin, J., dissenting.

Action to recover for personal injuries claimed to have been caused by defendant's negligence.

The plaintiff was injured by going through the open door of an elevator shaft when the car was not in place and falling down the shaft. The negligence complained of, made the subject of inquiry on the evidence, was as indicated in the verdict. The jury found, as follows:

“Question 1. Did the signal bell in the elevator fail to ring when the elevator moved upward from the first floor immediately before the plaintiff fell down the shaft?

Answer. No.

Question 2. If you answer the first question ‘Yes,’ then was such failure to ring caused by defect or want of repair?

Answer. ______.

Question 3. If you answer the first and second questions ‘Yes,’ could the defendant in the exercise of ordinary care have discovered such defect or want of repair in time to have remedied the same before the accident?

Answer. ______.

Question 4. If you answer, the first, second and third questions ‘Yes,’ was the defendant negligent in failing to put said bell in proper repair before the accident?

Answer. ______.

Question 5. Did the defendant negligently fail to reasonably guard the entrance to the elevator at the scratching room floor at the time of the accident?

Answer. No.

Question No. 6. If you answer the fourth and fifth questions, or either of them ‘Yes,’ was such negligence the proximate cause of plaintiff's injury?

Answer. ______.

Question 7. Was the plaintiff guilty of any want of ordinary care which contributed to produce his injury?

Answer. No.

Question 8. If the court shall determine that the plaintiff is entitled to recover, in what sum do you assess his damages?

Answer. $2,500.”

There was a motion for a new trial, granted because of supposed harmful error in the charge and such error in rulings on evidence. After such granting, defendant, upon due notice, applied to the court for an order fixing the amount of an undertaking to stay proceedings pending the result of an appeal from the order to this court. The appropriate order was made but before the time limited for appealing expired the court, without notice to defendant's counsel, on application of the plaintiff's counsel, rendered judgment dismissing the cause without prejudice. Defendant seasonably moved the court for a vacation of such judgment, which motion was denied. An appeal was then taken from the first order and a second appeal from the second error.Aarons & Niven (Quarles, Spence & Quarles, of counsel), for appellant.

Wallace Ingalls, for respondent.

MARSHALL, J. (after stating the facts as above).

Section 2856, St. 1898, provides that: “The plaintiff shall have no right to submit to a nonsuit after the argument of the cause to the jury upon the testimony shall have been concluded or waived.” It will readily be seen, without discussion, that appellant was entitled, as matter of right, after the verdict was rendered, to have the question of its right to judgment thereon determined by the trial court and, if necessary, by this court. It is quite likely that the learned trial court supposed that, a new trial having been granted, the case stood as regards the right of discontinuance the same as before it was submitted to the jury. The right to judgment upon the verdict or to appeal from a denial thereof, became fixed upon the verdict being rendered and could not rightly be taken away by a voluntary discontinuance. Moreover, if the right, so called, of discontinuance was revived by the order for a new trial, still it was not absolute. An application in that regard required assent of the court, so far as judicial action was necessary to save the rights of the adverse party from being unduly prejudiced. State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226-233, 82 N. W. 158. The notion that a plaintiff may, after bringing the defendant into court and compelling him to submit to the disturbances incident to the formation of issues and preparation for trial, under all circumstances, discontinue, being liable only for taxable costs, regardless of the situation in which it may leave the adverse party, is all wrong as suggested in the case cited.

True, the privilege of discontinuance is so commonly granted, within statutory limitations, that only in rare instances would any effort to prevent it be effective. The granting, generally, is as matter of course. So it is commonly spoken of as a right, but it is not a right absolute, as before indicated. It is to be granted or withheld according to the justice of the situation which might be such as to render assent an abuse of discretion. Such was the case here.

As the result of a full trial appellant, on the face of things, was entitled to judgment. Nothing stood in the way till the adverse ruling of the trial court after verdict on questions of law. A stay of proceedings being then granted to preserve the status quo pending an appeal, and to give reasonable opportunity for the preparation and service of appeal papers and the amount of the bond to stay proceedings till the termination thereof having been duly fixed, and respondent's counsel and the court having full notice that defendant intended in good faith to challenge the order for a new trial, it was clearly wrong for plaintiff to have judicial assent to a discontinuance sought with the evident purpose of superseding the right of appeal. We have no hesitancy in holding that such action was highly improper. It is not thought the learned trial court committed the error, conscious that it was within discretion to grant or refuse the discontinuance. It is supposed the thought must have been that plaintiff was entitled as matter of right to dismiss his action.

The foregoing brings us to consider the supposed errors of law which led to granting the new trial.

The first of such supposed errors is that the court improperly instructed the jury on the subject of positive and negative evidence.

There was no explanation to the jury as to what constitutes negative evidence, within the rule as regards the comparative weight between such and positive evidence, and none was requested. Without such request, if there were a situation legitimately calling for an application of the rule, and it was properly phrased, there was no error. It is familiar law that, if instructions are given applicable to evidence, good as far as they go, and no further instructions are asked, and yet, for want thereof, by way of explanation or otherwise, the jury may have gone astray, the losing party is remediless. The prejudice, if any, is to be regarded as chargeable to fault of the losing party. Cook v. Racine, 49 Wis. 243, 5 N. W. 352;Schroeder v. Wisconsin Central Railway Co., 117 Wis. 33, 93. N. W. 837;Taylor v. Seil, 120 Wis. 32, 97 N. W. 498;Pumorlo v. City of Merrill, 125 Wis. 102-114, 103 N. W. 464;Coppins v. Jefferson, 126 Wis. 578-585, 105 N. W. 1078;Van de Bogart v. Marinette & M. P. Co., 127 Wis. 105-112, 106 N. W. 805.

True, evidence merely negative in form in contradiction of positive evidence, does not call for application of the rule under discussion. For instance, testimony that the bell in the elevator did not ring, contrary to the evidence that it did ring, is negative in form but is an affirmation of fact that the bell did not ring. It is as affirmative as the evidence that the bell did ring. One affirms that the bell rang; the other that it did not. The same would be true in case of a witness, contradicting another who testified positively to seeing a certain act, testifying that it did not occur.

It is not to be wondered at that there is some confusion of understanding on this subject. In Kelly v. Schupp, 60 Wis. 76, 18 N. W. 725, in contradiction of positive evidence of a witness that an alleged agreement was made, the adverse party testified just as positively that it was not made. The court charged the jury that such negative testimony, in form, was not negative within the rule under discussion, and on the appeal this court said: “It clearly was,” referring to Ralph v. C. & N. W. R. Co., 32 Wis. 177, 14 Am. Rep. 725. That case is merely to the effect that when a person who testifies positively in form that an alleged transaction did not occur under such circumstances that it amounts to no more than that he does not recollect of any such occurrence, his testimony is negative evidence within the rule, notwithstanding the positive form. Later, in perfect harmony with Cook v. City of Racine, supra, and many other cases in this court and elsewhere, that mere want of recollection is negative testimony within the rule, the court decided that an assertion, as from recollection, that a thing affirmed on one side to have occurred, did not occur, is not such, but on the contrary is positive evidence. That was expressly held in Elkins v. Kenyon, 34 Wis. 93;Sobey v. Thomas, 39 Wis. 317;Shekey v. Eldredge, 71 Wis. 538, 37 N. W. 820;Joannes v. Millerd, 90 Wis. 68, 62 N. W. 916;Alft v. City of Clintonville, 126 Wis. 334, 105 N. W. 561. In the latter case it was said: “The mere form of the question put to the witness does not always determine whether his answer shall be regarded as positive or negative testimony.” “Thus it often happens that testimony which is negative in form may be really affirmative in essence and effect, within the real meaning and purpose of the rule.”

So it is apparent, as suggested in Joannes v. Millerd, supra, that the very valuable rule under discussion for weighing evidence, is liable...