Bengston v. Estes

• Decision Date: 05 February 1952
• Citation: 260 Wis. 595,51 N.W.2d 539
• Parties: BENGSTON et al. v. ESTES et al.
• Court: Wisconsin Supreme Court

Page 539

51 N.W.2d 539

260 Wis. 595

BENGSTON et al. v. ESTES et al.

Supreme Court of Wisconsin.

Feb. 5, 1952.

Action to recover damages sustained in an automobile collision. Suit was started February 16, 1950. Judgment dismissing plaintiffs' complaint was entered April 9, 1951. For the purposes of this opinion Mr. and Mrs. Bengston are treated as one person and Mr. Estes and his insurer as one.

Mrs. Bengston, driving Mr. Bengston's automobile, collided with Mr. Estes at the 'Y' intersection of University Avenue, Bassett Street and Gorham Street in Madison. Mr. Estes drove southwest on Gorham intending to turn southeast on Bassett. There was a good deal of traffic and he stopped in the intersection to wait for an opening. Several cars drove east on University and turned northeast into Gorham which he let go by. He saw Mrs. Bengston come east on University and thought that she was going to turn southeast into Bassett and that he could pass through the gap in the traffic. He started his turn and then discovered that she was intending to go northeast into Gorham. He stopped his automobile again but the cars collided. The jury found that Estes was negligent as to lookout but such negligence did not cause the collision. It found him not negligent as to management and control. It found him causally negligent in failure to yield the right of way. It found Mrs. Bengston was causally negligent as to lookout, not negligent as to management and control and causally negligent in her failure to signal her left turn. Negligence was divided thirty-five percent to Estes and sixty-five percent to Mrs. Bengston. She has appealed.

Toebaas, Hart, Kraege & Jackman, Madison, for appellants.

Rieser, Mathys, McNamara & Stafford, Madison, for respondents.

BROWN, Justice.

The appeal rests on various errors said to have been committed by the trial court. The most serious is that the court erred in instructing that the plaintiff had the burden of proving 'by a clear preponderance of the evidence and to a reasonable certainty' the elements of defendant's negligence and the causal effect. Plaintiff contends that this is the quantum of proof required in cases where fraud or criminal acts are the basis of civil actions and exceeds the quantum sufficient in matters of simple negligence. The authorities support plaintiff's contention. In Bursack v. Davis, 1929, 199 Wis. 115, 121, 122, 225 N.W. 738, 741, we stated that there are '* * * three recognized standards as to the quantum of evidence required to support an affirmative on a given issue, namely, first, that the jury be satisfied to a reasonable certainty by a fair preponderance of the evidence applicable only in ordinary court actions; and, the second, namely, evidence sufficient to establish to a reasonable certainty by a fair and convincing preponderance of the evidence applicable in actions of fraud and penal actions; and, third, the standard applicable in criminal cases where the burden rests upon the prosecution to satisfy the jury beyond a reasonable doubt.' We quickly discovered an inadvertent error in this statement and took pains to correct it in Milonczyk v. Farmers' Mut. Fire Ins. Co., 1929, 200 Wis. 255, on page 260, 227 N.W. 873, on page 874 saying: 'By error the word 'fair' was incorporated in the definition of the second standard, and we take this occasion to indicate that the rule is correctly stated in the Bursack Case, except that the word 'clear' should be substituted for the word 'fair.' * * *', after which we advised, 200 Wis. at page 261, 227 N.W. at page 875: '* * * It would prevent confusion if trial courts would adhere to the suggestions made, for the reason that if different language is used the question is at once presented whether or not a greater or less burden is cast upon the party having the affirmative of the issue than the law warrants. Uniform practice may become irksome in the course of time, but leads to certainty and prevents confusion.'

It is significant that the different burdens imposed by 'fair' and by 'clear' required an acknowledgement of our mistake and a correction. The respondent-defendant argues that there is no practical difference unless some additional qualifying adjective is included to make the phrase read 'clear and satisfactory' or 'clear and convincing', or the like. We have treated the single adjective 'clear' too often as applicable only to fraud and penal cases to consider the argument a valid one. Thus in Odegard v. North Wisconsin Lumber Co., 1907, 130 Wis. 659, 110 N.W. 809, the trial court instructed that the inference should clearly preponderate in favor of the existence of the fact. We said, 130 Wis. at page 684, 110 N.W. at page 817: '* * * This instruction is inaccurate, in that it requires a clear preponderance of the evidence in order to justify a finding. This is not the rule in civil actions, except in cases of alleged fraud or actions brought to set aside solemnly executed written instruments.' In ...