Cordes v. Hoffman

• Citation: 19 Wis.2d 236,120 N.W.2d 137
• Parties: Mary E. CORDES and Henry Cordes, Plaintiffs-Appellants, v. Herbert Charles HOFFMAN and Railway Express Agency, Incorporated, a foreign corporation, Defendants-Respondents.
• Decision Date: 05 March 1963
• Court: Wisconsin Supreme Court

Page 137

120 N.W.2d 137

19 Wis.2d 236

Mary E. CORDES and Henry Cordes, Plaintiffs-Appellants, v. Herbert Charles HOFFMAN and Railway Express Agency Incorporated, a foreign corporation, Defendants-Respondents.

Supreme Court of Wisconsin.

March 5, 1963.

Donald R. Hunter, Milwaukee, for appellants.

Foley, Sammond & Lardner, Michael O. Donnelly, Milwaukee, Eugene C. Daly, Milwaukee, of counsel, for respondents.

HALLOWS, Justice.

As a matter of right the plaintiffs cannot question the applicability or the validity of secs. 269.03 and 269.04, Stats., because these issues were not raised at the trial level. Gandt v. Joint School Dist. (1958), 4 Wis.2d 419, 90 N.W.2d 549; Zombkowski v. Wisconsin River Power Co. (1954), 267 Wis. 77, 81, 64 N.W.2d 236. This court does have, however, the power and may consider the entire record and dispose of questions of law although presented for the first time on appeal. Herro v. Heating & Plumbing F. Corp. (1931), 206 Wis. 256, 239 N.W. 413; Cappon v. O'Day (1917), 165 Wis. 486, 162 N.W. 655, 1 A.L.R. 1657; Braasch v. Bonde (1960), 191 Wis. 414, 211 N.W. 281 and Dupont v. Jonet (1917), 165 Wis. 554, 162 N.W. 664. Specifically, questions of constitutionality will not ordinarily be considered which are not first raised at the trial level. Wisconsin Power & Light Co. v. Dean (1957), 275 Wis. 236, 242, 81 N.W.2d 486; Ludwig v. John Hancock Mut. Life Ins Co. (1956), 271 Wis. 549, 555, 74 N.W.2d 201; State ex rel. Nelson v. Rock County (1955), 271 Wis. 312, 73 N.W.2d 564.

Although the plaintiffs do not have the right to have the applicability of secs. 269.03 and 269.04, Stats., reviewed, we will consider their applicability because of the importance of the question as a matter of practice.

Upon the service of the complaint, the defendants might have offered judgment under sec. 269.02, Stats., in which case if the plaintiffs had rejected the offer and the plaintiffs failed to recover a more favorable judgment the defendants would have been entitled to full costs. Nolop v. Spettel (1954), 267 Wis. 245, 246, 64 N.W.2d 859, 861. The defendants, however, before serving their answer made an offer of damages in the amount of $1,500 under sec. 269.03, Stats. This section provides a defendant may make a written offer that if he fail in his defense the damages may be assessed at the specified sum and if the plaintiff accepts the offer within 10 days and before trial and prevails on the trial, the damages shall be assessed accordingly. However, if the plaintiff does not accept the offer of damages and if the damages assessed at the trial in his favor do not exceed the damages offered, the defendant may recover that part of his expenses relating to the necessary preparation and defense of the damage issue. Defendants on their motion claimed $2,206.66 as necessary expenses. These included legal services of $1,850, medical examination and witness fees of $285, adverse examination $66.71 and long distance telephone $4.95.

At the time of defendants' offer under sec. 269.03, Stats., they had not yet served their answer and the plaintiffs had no way of knowing what the defense would be. This offer complied neither with sec. 269.02, Stats., as an offer of judgment because it did not purport to be such nor with sec. 269.03 because the defendants had not asserted their defense. We construe sec. 269.03 to require the defense of the defendant to be pleaded at the time the offer is made. The statute comtemplates the offer of damages is based upon a defense on issues other than damages on which issues the defendant fails, otherwise the defendant is in the same position as one making an offer of judgment. Secs. 269.03 and 269.04, Stats., came from the Field Code and were created by Laws of 1865, ch. 120, secs. 288 and 289. Originally, these sections applied only to contract actions and in 1936 were extended to noncontract actions by court rule. See 217 Wis. vii. What the defendants have attempted to do hereby making the offer of damages under sec. 269.03 without having their defense in the case and later putting in an answer admitting negligence was to secure their expenses under sec. 269.03 rather than costs to which they would have been entitled if they had made an offer of judgment under sec. 269.02. The defendants did not comply with sec. 269.03. They neither put in a defense at the time of or prior to the offer nor did they fail in their defense--they admitted liability. It was error for the trial court to grant the defendants' motion and on this issue the plaintiffs are entitled to judgment on the verdict with their costs.

It would seem illogical and incongruous if only costs computed on the demand of the complaint are to be awarded defendant under sec. 269.02, Stats., that sec. 269.04, Stats., should provide the defendant recover his expenses incurred in consequence of any necessary preparation and defense in respect to the question of damages. We also point out sec. 327.22, Stats., relating to admissions and denials of facts and documents provides for reasonable expenses of proving any fact or document mentioned in the notice and not admitted. Although the question was not raised in this case, we express doubt if attorney's fees are included within the meaning of expenses...