Bohlman v. American Family Mut. Ins. Co., 154

• Decision Date: 21 January 1974
• Docket Number: No. 154,154
• Citation: 214 N.W.2d 52,61 Wis.2d 718
• Parties: Duane C. BOHLMAN, Respondent, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Appellant, Clarence Schumacher, Appellants.
• Court: Wisconsin Supreme Court

Page 52

214 N.W.2d 52

61 Wis.2d 718

Duane C. BOHLMAN, Respondent, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Appellant Clarence Schumacher, Appellants.

No. 154.

Supreme Court of Wisconsin.

Jan. 21, 1974.

Rehearing Denied April 2, 1974.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, Roger Rouse and Douglas J. Klingberg, Wausau, of counsel, for appellant.

Kersten & McKinnon, Milwaukee, Arlo McKinnon, Milwaukee, and Rex M. Smith, Antigo, of counsel, for respondent.

HALLOWS, Chief Justice.

There are, as in many automobile accident cases, two divergent theories of how the accident happened. The accident occurred on South Superior street, the main traffic artery through Antigo, at 3:30 in the afternoon of October 10, 1964. The weather was clear and the road was dry, straight and level. South Superior street is also State Highway 45 and runs north and south and is divided by a single-painted stripe down the center, separating the northbound traffic from the southbound traffic. The street is approximately 44 feet wide with room for two lanes of traffic to proceed in the same direction on either side of the center stripe but there are no lane designations other than the painted stripe down the center of the highway.

After Schumacher finished shopping at a food market on the west side of South Superior street, he exited from the market's parking lot and turned left on to South Superior street, heading north. Some 300 feet north of the market he turned his auto in a northeasterly direction in the process of making a right turn to enter the driveway of another market on the east side of South Superior street. As he was making this turn, his automobile was struck on the right rear-bumper by the motorcycle driven by Bohlman, who had been proceeding north on South Superior street. Bohlman was thrown from the motorcycle over the trunk of the automobile, and landed approximately eight feet north of the auto. He sustained serious leg injuries.

According to Schumacher's version of the accident, after he turned north on to South Superior street, he proceeded at a speed of some 20 to 25 miles per hour with the left-side wheels of his automobile positioned three to four feet east of the painted-center stripe. This would place his automobile in the inner area or lane of the east half of South Superior street. Before turning from this area, he applied his brakes, put on his turn signals to indicate his intention to make a right turn, checked his rear-view mirror, and saw nothing. He testified he did not see the motorcycle or hear any horn sounding and that he was not struck until his front wheels were up on the sidewalk and his rear wheels were climbing the driveway incline from the street. On this theory, the accident was a mine-run, rear-end collision caused by Bohlman following Schumacher at too close a distance and failing to sound his horn.

Bohlman's story is substantially different. He claims the accident occurred because Schumacher attempted to make a right turn in front of him from the left lane without any warning when it was not safe for Schumacher to do so. Bohlman testified he was operating his motorcycle approximately 25 miles per hour in the outer area of the northbound South Superior street, which would place him in the lane next to the curb. His speed was consistent with that of Schumacher who was in the inner area, some 45 to 55 feet ahead and to the left of him, when suddenly and without warning, Schumacher started to make a right turn in front of him from the inner area. Having been cut off by this maneuver, Bohlman then swung left in an attempt to avoid hitting Schumacher's vehicle but was unsuccessful. Bohlman testified the right side of his motorcycle struck the right rear-bumper of the automobile and wedged his leg between the motorcycle and the auto. Bohlman placed the accident in the roadway, not on the driveway incline and testified that at the point of impact the left rear-corner of Schumacher's automobile was some six or seven feet east of the painted centerline, which area was still part of the inner area of the northbound double lane. There were three witnesses to the accident besides the four-family-member passengers in the Schumacher car. The three witnesses in general supported Bohlman's theory of the accident and the four-family members testified for Schumacher.

Schumacher and American Family raise a question in respect to instructions on the apportionment of negligence, request a new trial in the interest of justice, and claim the damages awarded plaintiff were excessive. In respect to the instructions, defendants argue that there was prejudicial error because of the failure of the trial court to give the instructions requested and that the instructions the court did give were repetitious and unduly emphasized Bohlman's theory of the case.

Defendants made a written request that the trial court instruct the jury inter alia on plaintiff's duty with respect to operation of a car following another, Wis. J I, Civil, 1112; nonstatutory duty to sound horn, Wis. J I, Civil, 1096; and lookout, Wis. J I, Civil, 1055. These requested instructions were selected as a means to get the defendant's theory of the case as a mine-run rear-end collision before the jury, but defendant's counsel thereafter assisted the trial court in chambers in the preparation of a set of the instructions to be given the jury and made no objection at that time or thereafter to the instructions which were given or the failure to give his requested instructions. The instructions given did not include an instruction on the plaintiff's duty respecting the sounding of his horn or following another vehicle and the instruction given respecting the plaintiff's duty of lookout differed somewhat from the standard instruction on lookout.

Following the instruction of the jury and the return of the verdict, defendants moved the trial court for a new trial, among other things, and raised the issue concerning the jury instructions. When defendants' counsel participates along with plaintiff's counsel in chambers with the trial judge in drafting instructions to be given to the jury, such participation without objection to the omission of his proposed instructions from the final draft and a modification in the final draft of one of his proposed instructions constitutes his concurrence in the instructions as the trial judge proposed to give them. By failing to note an objection or to evidence disagreement with the instructions which the trial judge had prepared, defendants' counsel impliedly consented to the instructions given and consequently waived any objection which might have been taken assuming a breach of the requirement or the duty of the trial judge to give the requested instructions. While it is the practice for trial counsel to help a trial judge with instructions and perhaps agree to them, trial counsel, if he desires to cooperate with the trial judge and does not want to waive his own instructions, should state his reservation on the record so that his exceptions and his instructions may serve as a foundation for appeal; otherwise, participation in the preparation of or agreement with the instructions given by the trial court, even if such agreement is requested by the trial court, constitutes a waiver of the giving of the instructions requested and of any error in the instructions given so that such alleged errors may not be raised on appeal as a matter of right. This procedure will expedite a trial without creating situations embarrassing to trial counsel or a waiver of objections concerning instructions.

Appellants argue that when a party claims error because of the failure to give instructions, he need only show that a timely request for appropriate instructions was made and that a motion for a new trial, bottomed on such error, was made, citing Carson v. Pape (1961), 15 Wis.2d 300, 112 N.W.2d 693, and Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380. Because both these steps were taken in the instant case, appellants maintain they are entitled to raise the issue relating to the instructions as a matter of right; we think not. In Savina v. Wis. Gas Co. (1967), 36 Wis.2d 694, 154 N.W.2d 237, plaintiff complained on appeal about the form of a verdict question and certain instructions. The court held plaintiff could not raise these issues as a matter of right.

'These issue cannot be raised as a matter of right as there was no timely objection either to the form of the verdict or to the insufficiency of the instruction and no additional instruction was requested of the court. An objection to the form of a verdict must be made promptly. If counsel knows the form of the verdict prior to the verdict's submission to the jury, he should then object; if no such opportunity is afforded counsel, objection to the form of the verdict should be made before the jury returns its verdict. A party cannot take his chance with the jury and object only if he loses. Nimits v. Motor Transport Co. (1948), 253 Wis. 362, 34 N.W.2d 116; Johnson v. Sipe (1953), 263 Wis. 191, 56 N.w.2d 852; Martin v. Outboard Marine Corp. (1962), 15 Wis.2d 452, 113 N.W.2d 135. The objection here is not to the validity of the verdict as was the case in Vroman v. Kempke (1967), 34 Wis.2d 680, 150 N.W.2d 423, where the verdict was void and did not constitute a verdict and thus could not stand whether objected to or not.

An objection to the instructions for inadequacy or insufficiency must also be made at least prior to the return of the verdict. Generally, counsel should timely submit his requested instructions, but if this is not done and the instructions given are not erroneous as a misstatement of the law but are incomplete, it is the duty of counsel to object at the time the instruction is given. Carson v. Pape (1961), 15 Wis.2d 300, 112 N.W.2d 693; Grinley v. Town of Eau Galle (1965), 274 Wis. 177...