Baierl v. Hinshaw

• Decision Date: 29 November 1966
• Citation: 32 Wis.2d 593,146 N.W.2d 433
• Parties: Charles BAIERL, Appellant, v. Leo R. HINSHAW et al., Respondents, Hartford Accident & Indemnity Co., a foreign corporation, Impleaded Defendant.
• Court: Wisconsin Supreme Court

Page 433

146 N.W.2d 433

32 Wis.2d 593

Charles BAIERL, Appellant, v. Leo R. HINSHAW et al., Respondents Hartford Accident & Indemnity Co., a foreign corporation Impleaded Defendant.

Supreme Court of Wisconsin.

Nov. 29, 1966.

Cohen, Parins, Cohen & Grant, Green Bay, for appellant.

Bradford & Gabert, Appleton, for respondents.

CURRIE, Chief Justice.

While the brief of plaintiff-appellant raises 11 assignments of error, this opinion (1) Was the form of verdict a proper manner in which to submit the negligence issues to the jury?

will be limited to consideration of the following three issues:

(2) Should a new trial be directed, either on the ground of error or in the interest of justice, because of the failure of the trial court to instruct the jury with respect to the alleged failure of defendant to have both headlights on his car operating?

(3) Did the trial court err in the instruction given on the issue of causation?

Form of Verdict.

At the end of the first day's testimony the trial court read to the respective attorneys the form of the verdict it later submitted to the jury. The next day, after the taking of testimony was concluded, a copy of the verdict was handed to each of the attorneys prior to argument to the jury. Plaintiff's counsel at no time prior to submission of the case to the jury voiced any objection to the form of the verdict.

This court has repeatedly held that failure of counsel to object to the form of a proposed special verdict before it is submitted to the jury constitutes a waiver of any right thereafter to object to the verdict as submitted. ¹ Therefore, the failure of plaintiff's counsel to timely object to the form of the instant verdict precludes plaintiff from raising the issue of the form of the verdict as a matter of right on this appeal. However, because the form of the verdict presents an issue which we deem ought to be decided in the interest of the proper administration of justice, we have concluded to exercise our discretion and decide it.

In 1961 this court, pursuant to its rule-making power, amended sec. 270.27, Stats., entitled 'Special Verdicts' by adding thereto these two sentences:

'It shall be discretionary with the court whether to submit such questions in terms of issues of ultimate fact, or to submit separate questions with respect to the component issues which comprise such issues of ultimate fact. In cases founded upon negligence, the court may submit separate questions as to the negligence of each party, and whether such negligence was a cause without submitting separately any particular respect in which the party was allegedly negligent.' ²

Prior to the above amendment it was necessary in a negligence action to submit separate questions concerning each respect in which it was alleged that a party was negligent provided there was credible evidence to support an affirmative answer. For example, it might be necessary to submit separate questions with respect to speed, lookout, management and control, and failure to yield the right-of-way. The amendment authorized the use of an ultimate fact verdict which merely inquires, 'At and immediately before the collision was defendant John Doe negligent in the operation of his motor vehicle?' followed by a causation question to be answered in the event the negligence question was answered in the affirmative. Similar negligence and causation questions were submitted as to each party whose causal negligence was claimed to have caused the accident if there was evidence warranting such submission. If the negligence of more than one person was in issue the customary comparative negligence question also had to be submitted.

Wide use of the ultimate fact type of verdict not only greatly simplified the form The instant case has presented a form of special verdict which combines the elements of negligence, causation, and comparison in a single question. This we determine is not permissible under the wording of sec. 270.27, Stats. as amended by this court in 1961. Our determination is amply supported by the history of the 1961 amendment as revealed by the material on file in the records of the clerk of this court.

of special verdicts submitted in negligence actions but also eliminated the thorny problem of duplicitous findings of negligence which frequently arose to plague both the trial courts and this court.

The 1961 amendment originated in written proposals submitted to this court June 24, 1960, by the Board of Circuit Judges' Committee on Simplification of Special Verdict. Members of the committee were Circuit Judges Arnold F. Murphy, Edward M. Duquaine, Bruce F. Beilfuss and A. W. Parnell. The proposals in the alternative suggested two amendments to sec. 270.27, Stats. The first proposal was to amend the statute by adding this sentence:

'IT SHALL BE DISCRETIONARY WITH THE COURT WHETHER TO SUBMIT SUCH QUESTIONS IN TERMS OF ULTIMATE ISSUES OF FACT, OR TO SUBMIT SEPARATE QUESTIONS WITH RESPECT TO THE COMPONENT SUBSIDIARY ISSUES OF FACT WHICH COMPRISE SUCH ULTIMATE ISSUES OF FACT.'

The second proposal was to rewrite sec. 270.27, Stats. to read:

'The court may, in its discretion, direct the jury to find a special verdict. Such verdict shall be prepared by the court in the form of written questions relating to such ultimate facts necessary to support a judgment, or to such additional material facts as in its discretion are necessary for a full and fair determination of the issues presented.'

An explanatory note accompanied the proposals in which the committee set forth three examples of special verdicts for use in negligence actions which the committee stated were 'within the purview' of the amendment set forth in the first proposal. The first form of verdict was the ultimate fact form of verdict hereinbefore described which has been widely used since the effective date of the 1961 amendment to sec. 270.27, Stats. The second form of verdict combined negligence and causation into a single question. The third form of verdict was identical to the verdict employed by the trial court in the instant case. In a subsequent memorandum filed by the committee with the judicial council it was explained that this third form of verdict was included in the original proposals to this court 'solely for 'analytical and critical purposes."

This court referred the proposals to the Judicial Council for study and report. The court rules committee of the council held a public meeting on the proposals on November 17, 1963, to which the committee of the Board of Circuit Judges was invited, together with the presidents of the county bar associations, the officers of the State Bar, and appropriate sections of the State Bar, and all other interested persons. The meeting was well attended and sharp differences of opinion were expressed. On December 16, 1960, the council filed a written report with this court in which it was stated that the council had voted seven to two to recommend rejection of the proposals to amend sec. 270.27, Stats.

This court, in spite of the adverse report of the council, deemed the proposals of sufficient merit to warrant a public hearing thereon. However, some members of the court were not entirely satisfied with the wording of either of the two proposed amendments and drafted three additional proposed amendments. It was decided that the hearing should be held on these as well as the two proposed by the committee of judges. The five proposed amendments (with respect to which a public hearing was The public hearing held before this court on March 17, 1961, was well attended by judges and lawyers. Arguments for and against the four alternative amendments to sec. 270.27, Stats. were presented. Subsequent to the hearing the members of this court carefully considered the amendments and on March 28, 1961, unanimously adopted the amendment labeled in the appendix as 'First Alternative' after making slight alternations in its wording, the amendment to become effective June 1, 1961. In reaching this result the court had before it the three forms of suggested verdicts to be used in automobile negligence actions contained in the 'Explanatory Note' accompanying the proposals which the committee of circuit judges had submitted to this court on June 24, 1960. This amendment had been drafted with the intent of using language which would authorize the first of the three listed forms of verdict, and to discountenance the other two. That is why the words 'submit separate questions as to the negligence of each party, and whether such negligence was a cause' were employed.

noticed on January 18, 1961 and held March 17, 1961), are set forth in the appendix to this opinion. The first amendment set forth is the first of the two alternative amendments proposed by the judges' committee. The proposed amendments labeled, 'First Alternative,' 'Second Alternative,' and 'Third Alternative' were the three amendments drafted by members of this court. The 'Fourth Alternative' was the other amendment proposed by the committee.

Undoubtedly one of the reasons which prompted this court in making the choice which it did was the fact that a verdict in the form submitted in the instant case would require special instructions over and above those required in submitting the form of verdict having separate negligence and causation questions. It is a trend in the wrong direction to make instructions more difficult to follow and remember. ³ One of the complexities presented in instructing a jury with respect to questions worded as were those in the instant verdict concerns the burden of proof.

While we conclude that the form of verdict herein submitted is not authorized by sec. 270.27, Stats., we hold that it is not against public policy for the parties in a negligence action to stipulate to its use.

In the instant case, while we find it was error to have submitted the form of verdict employed to cover the issues of negligence, causation and...