Austin v. Ford Motor Co.

• Citation: 86 Wis.2d 628,273 N.W.2d 233
• Decision Date: 09 January 1979
• Docket Number: No. 75-776,75-776
• Parties: Michelle M. AUSTIN and Michael A. Austin, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Respondent, Jack White, Inc., Defendant.
• Court: Wisconsin Supreme Court

Page 233

273 N.W.2d 233

86 Wis.2d 628

Michelle M. AUSTIN and Michael A. Austin, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Respondent Jack White, Inc., Defendant.

No. 75-776.

Supreme Court of Wisconsin.

Argued Oct. 3, 1978.

Decided Jan. 9, 1979.

Edward Rudolph, Milwaukee, for appellants.

Paul E. Schwemer, Milwaukee, for respondent; Merten, Connell & Sisolak, S. C., Milwaukee, on brief.

HEFFERNAN, Justice.

This case arose out of a fatal automobile accident which occurred on April 8, 1966. The action was brought by Michelle M. Austin and Michael A. Austin for the wrongful death of their mother, Barbara M. Austin. Facets of this action have been before this court on two previous occasions. In Schnabl v. Ford Motor Co., 54 Wis.2d 345, 195 N.W.2d 602, 198 N.W.2d 161 (1972), this court reversed a summary judgment granted to Ford and remanded the case for trial. Austin v. Ford Motor Co., 73 Wis.2d 96, 242 N.W.2d 251 (1976), held that the plaintiffs could appeal from the trial court's order granting a new trial, although the plaintiffs had moved for a new trial or, alternatively, for a judgment on the verdict or a judgment notwithstanding the verdict.

The plaintiffs are now appealing from the order which granted a new trial on the issue of liability and ask that this court enter a judgment on the verdict as that verdict was in effect approved by the conclusions of the trial court.

Ford asserts that it is entitled to judgment on the verdict as returned by the jury.

No transcript of the trial testimony was filed by either party. Rather, the appeal is brought upon the record, a 562-page document consisting of the pleadings, affidavits, motions, orders and memoranda, and other documents which are largely procedural in nature. Jury instructions, the special verdict, and the final argument of defense counsel have been included in the record. It is apparent, however, that the facts on this appeal can only be derived from the pleadings and other portions of the record. Trial testimony is only available to this court to the extent that it is incorporated in the lengthy memorandum decision of the trial court.

Because neither party has furnished a transcript, we are obliged to accept the trial court's statement of facts as a verity. Basically, those facts, as revealed in the trial court's memorandum decision, show that a motorist testified that Barbara Austin, in her new 1966 Ford automobile, passed him when he was travelling at a speed of 65 to 70 miles per hour. He stated that Barbara Austin's Ford was going 20 to 25 miles per hour faster than he was. He stated that he saw the Ford car go off the road, roll two or three times, and land on its top. A state police officer who arrived on the scene shortly thereafter testified that he found a portion of the driver's seatbelt lying on the ground and a portion still attached to the front seat. Barbara Austin's body was found 10 to 15 feet away from the vehicle. The minor children, Michelle and Michael, were passengers in the car at the time of the accident and were thrown from the vehicle.

The plaintiffs presented two witnesses whose testimony tended to prove that the defective seatbelt was a cause of death. A state police technician whose work included the examination of seatbelts stated that he made a microscopic examination of the belt. He found that the webbing had been irregularly cut through, making a total cut through one half or more of the belt. He stated that a sharp instrument was required to do the cutting and that there was nothing in the car which could have caused it. He also testified that the belt was severed over to one side. He testified as an expert witness that, as a general rule, it is safer to be restrained by a seatbelt in an accident, because it prevents the body from going forward or upward or from being thrown from the vehicle. He testified that to a reasonable probability the breaking of the seatbelt in this accident could have been a significant factor in making the accident a fatal one.

A licensed registered engineer testified that to a reasonable scientific probability there was a causal connection between the break in the seatbelt and the death and that, if the belt had not broken, the decedent would not have been injured. He stated that, in his opinion, Barbara Austin died after the seatbelt broke. He stated that the pre-existing cuts in the belt were close to the seat where they would not be felt or seen by the user of the belt.

The defendant presented no expert testimony on the causation issue but argued that there was substantial evidence that the impact of the accident was of sufficient force to cause Barbara Austin's death.

After a two-week trial, a special verdict was submitted to the jury. The jury found that Barbara Austin was wearing the seatbelt at the time of the accident; that the seatbelt, when it left the possession of Ford, was in a defective and unreasonably dangerous condition; and that the defective condition of the seatbelt was a cause of Barbara Austin's death. Additionally, the jury found that Barbara Austin was negligent in the operation of the automobile in respect to speed and in respect to management and control. The jury also found that Barbara Austin's negligence was a cause of her death. It apportioned that negligence, attributing 35 percent to Ford Motor Company and 65 percent to Barbara Austin. In respect to damages, it determined that the pecuniary loss for the wrongful death was $47,500 and the damages for loss of society and companionship was $95,000.

The record before us shows that the jury was correctly and carefully instructed in respect to the burden of proof which each of the parties was required to assume. It was instructed that the plaintiffs had the burden of showing that the seatbelt was defective and dangerous when it left the possession of Ford and the burden of showing that the defective condition of the seatbelt, if found, was a cause of the death. The jury was instructed that the burden was on the defendant Ford to prove that Barbara Austin's negligence in driving the car was a cause of the death. The jury was specifically admonished: "You will note that the questions do not inquire as to the cause of the accident but to the cause of the death of Barbara W. Austin."

The trial court in its memorandum opinion pointed out that in its jury instructions it had emphasized the distinction between the cause of the death and the cause of the accident. The jury instructions emphasized that the proof of a negligently caused accident was not proof of the cause of death and that, once the plaintiffs had proved that the defective seatbelt was a substantial factor in the cause of death, the burden was upon the defendant to prove that any contributory negligence on the part of Barbara Austin was a cause of the death. In its memorandum decision the trial court concluded that the plaintiffs had assumed the burden of showing that the defective and unreasonably dangerous seatbelt was a cause of Barbara Austin's death, but that the defendant had failed to assume its burden of proving that Barbara Austin's negligence was a substantial factor in causing her death. The trial court stated:

"The accident was a grievous one and the facts support a finding of negligent driving by the decedent. But the heart of the case is causation, not of the accident but of the death. In an action such as this, is it a permissible inference or conclusion that decedent's negligent driving was a cause of her death as well as the extent to which it was a contributing factor? The court is persuaded to the conclusion that it is not.

". . .at

"The court is of the further opinion that there is no competent credible evidence in the record to sustain a jury finding that decedent's negligence was a substantial factor in causing her death."

On the basis of a review of evidence, the trial court reached the conclusion that, "(T)he issue of decedent's negligence as a cause of Death has not been tried."

The trial court in its memorandum opinion concluded that the plaintiffs had proved that the dangerously defective seatbelt was a cause of Barbara Austin's death, but the defendant had not proved that Barbara Austin's own negligence was a cause of her death.

In view of these findings, which we accept as a verity in the absence of a transcript, we would have expected the trial judge to strike the answer of the jury, which found that Barbara Austin's negligence was a cause of death and to amend the verdict to show that the only negligence proved was that of Ford Motor Company and, accordingly, order judgment for the plaintiffs in the appropriate amount of damages with no diminution for contributory negligence. Instead, the trial judge ordered:

"IT IS FURTHER ORDERED that there be a new trial in this case as between Plaintiffs and Defendant, Ford Motor Company only, on the issue of liability only, there being credible evidence to sustain the Verdict on the jury's findings as to damages. Said new trial ordered here is being ordered in the Interest of justice for the reason that Ford Motor Company failed to discharge its burden of proof that the contributory negligence of the deceased in the operation of the accident vehicle (found by the jury to be 65%) was a substantial factor in causing the death in this case, there being no credible evidence in the record here to support such finding by the jury as expressed in its answer to Question No. 6 (setting the percentages of negligence) to the contrary, all without costs to any of the parties." (Emphasis supplied.)

Basically, under the facts, limited as they are as a result of the failure of either party to supply a transcript, this recitation is dispositive of the case. Where a trial court, in the exercise of discretion, has concluded that there is no evidence to support a jury finding and when no transcript has been furnished whereby the exercise of that discretion can be...