Anderson v. Seelow
| Decision Date | 09 March 1937 |
| Citation | 271 N.W. 844,224 Wis. 230 |
| Parties | ANDERSON v. SEELOW et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the superior court of Douglas County; Archibald McKay, Judge.
Reversed.
Action by Olaf C. Anderson against George Seelow and Sampson-O'Connell, Inc., commenced April 18, 1936. From a judgment entered August 20, 1936, in favor of the plaintiff the defendant Sampson-O'Connell, Inc., appeals.
The plaintiff Anderson sues to recover for injuries sustained in the collision of his automobile which he was driving with an automobile driven by defendant George Seelow. Seelow was a garage employee of the defendant Sampson-O'Connell, Inc., garage owners. The automobile Seelow was driving belonged to a customer of the garage owners, who had it in the garage for repairs. The jury found Seelow guilty of negligence that proximately caused the collision, and no error is claimed in this respect. They also found that Seelow was driving the automobile with the consent of the garage owners, and that he was using the automobile in their business. It is not claimed that the plaintiff was negligent. Judgment was entered for the plaintiff against both defendants.Crawford & Crawford, of Superior, for appellant.
Cadigan & Cadigan, John C. Fritschler and John H. Chisholm, all of Superior, for respondent.
This is an automobile collision case grounded on alleged negligence of the appellant's employee. The appellant, a garage owner, contends: (1) That the court should have directed a verdict in its favor because the credible evidence shows that Seelow, its employee who was driving the automobile that collided with the automobile of the plaintiff, was driving it without its consent and was driving it on his own and not in his employer's business; and that, if its motion for a directed verdict was properly denied, the court should have granted its motion for a new trial (2) in the interests of justice, and on the grounds (3) that the court erred in instructing the jury and (4) that the damages awarded are excessive.
[1][2] (1, 2) The testimony of the defendant Seelow, if believed by the jury, as the findings of the jury indicate it was, made a case for the plaintiff, and thus raised a jury question. His testimony was also somewhat corroborated in one respect by testimony of the plaintiff that one of the officers of the garage owner stated to him that Seelow was testing the brakes of the car when the accident occurred. We are therefore constrained to hold that the motion for a directed verdict was properly denied. We have the not unusual case of a party testifying on the witness stand to a state of facts entirely contrary to his admitted written statements made shortly after the occurrences to which his testimony relates. While the situation is not unusual, it is seldom that statements upon the trial are so completely contradicted by the written statement at every material point, and by the testimony of several witnesses apparently credible. One of the grounds for a new trial was that it was required in the interests of justice. In view of the fact that the testimony bearing upon the questions stated is so overwhelmingly contrary to that of Seelow and because of the matters treated under (3) and (4), we consider that a new trial should be ordered in the interest of justice under section 251.09, Stats. We do not perceive that any good purpose would be served by detailing the evidence upon these questions.
[3] (3) Question 8 of the verdict was: “At the time of the collision *** was the defendant George Seelow using the Ford automobile in the business of his co-defendant, Sampson-O'Connell, a corporation?” In connection with this question the court instructed the jury that
[4] This instruction in effect told the jury that to entitle the plaintiff to recover they must find that Seelow was using the automobile in the business of Sampson-O'Connell. This court has frequently held that it is error for the court to inform the jury of the effects of...
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Delvaux v. Vanden Langenberg
...of the effect of their answer in this respect is to frustrate this purpose.' " Id. at 198, 234 N.W.2d 325 (quoting Anderson v. Seelow, 224 Wis. 230, 234, 271 N.W. 844 (1937)). Although we recognized that multiple-party negligence cases may involve complex matters of negligence apportionment......
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...final result of his answers to the special verdict. Banderob, supra. The rationale of these rules was stated in Anderson v. Seelow (1937), 224 Wis. 230, 234, 271 N.W. 844, 846, '. . . The sole purpose of a special verdict is to get the jury to answer each question according to the evidence,......
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