Dunlavy v. Dairyland Mut. Ins. Co.

• Decision Date: 29 October 1963
• Citation: 124 N.W.2d 73,21 Wis.2d 105
• Parties: Brian DUNLAVY, Plaintiff-Appellant, v. DAIRYLAND MUTUAL INS. CO., a Wis. corporation, and Defendants-Respondents. Farmers Insurance Exchange, a foreign corporation, et al.
• Court: Wisconsin Supreme Court

Page 73

124 N.W.2d 73

21 Wis.2d 105

Brian DUNLAVY, Plaintiff-Appellant, v. DAIRYLAND MUTUAL INS. CO., a Wis. corporation, and Defendants-Respondents Farmers Insurance Exchange, a foreign corporation, et al.

Supreme Court of Wisconsin.

Oct. 29, 1963.

Action by plaintiff, Brian Dunlavy, against Dairyland Mutual Insurance Company, Hardware Dealers Mutual Fire Insurance Company (hereinafter 'Hardware Dealers'), Farmers Insurance Exchange (hereinafter 'Farmers Insurance'), and their respective insureds, Otis L. Gobin, Peter Church, and Joel F. Dudley, to recover damages for personal injuries sustained by plaintiff when struck by an automobile.

The collision occurred on December 24, 1960, shortly after midnight in the vicinity of Milton in Rock county. On the evening of the day in question plaintiff, along with four others, had been a passenger in the automobile owned and operated by defendant Dudley. The other passengers were David Powell, Charles Rye, Floyd Dominy and Gary Henning. A second automobile was operated by defendant Church. Its passengers were Ronald Miner and Thomas Pearson. The third automobile was operated by defendant Gobin. Prior to plaintiff being struck, all three automobiles had been proceeding south on Highway 26, the Dudley car being ahead, the Church car behind it, and the Gobin car a considerable distance to the rear.

The Dudley car came to a stop on the highway about 200 feet south of the crest of a small hill, after which Dunlavy and the other passengers got out of the car. The Church car first stopped to the rear of, and not over 25 feet from, the Dudley car. Church was in the act of backing his car across the lane for northbound traffic when the Gobin car arrived at the scene. Gobin found both traffic lanes blocked by the Dudley and Church cars and took to the west ditch to get around them. Dunlavy, who was then standing in the west ditch, was struck by the Gobin car.

Trial was had to the court and a jury. The jury returned a special verdict wherein it found all three drivers causally negligent and apportioned the total aggregate causal negligence as follows: Dudley 43 percent; Church 14 percent; and Gobin 43 percent. The verdict also fixed the amount of Dunlavy's damages. On June 26, 1962 judgment was entered upon the verdict in favor of Dunlavy and against defendants for the damages found by the jury, except that the amount recoverable from each insurance company was restricted to its policy limits. Defendants Farmers Insurance and Dudley then appealed from this judgment.

On December 6, 1962, while this appeal was pending, Farmers Insurance served a motion in the supreme court which requested: (1) that the record be remanded to the circuit court for a new trial on the basis of newly discovered evidence set forth in affidavits and statements of witnesses submitted with the motion papers; and (2) that the pending appeal be abated pending the subsequent proceedings on the motion for new trial in the circuit court. The supreme court by order entered January 11, 1963 provided as follows: (1) granted the motion to the extent of remanding the record to the circuit court; (2) upon timely motion to the circuit court, empowered such court 'to hear and determine whether either a new trial or proceedings relating to an insurance policy defense, or both, should be held; and if so determined, to proceed accordingly;' (3) retained our jurisdiction of the appeal pending further order of the court; and (4) directed appellants to apprise the court of 'the final disposition by the circuit court of such motions as the appellants may make before the circuit court.'

Upon remand to the circuit court all of the defendants moved for a new trial on the ground of newly discovered evidence. Farmers Insurance and Hardware Dealers also moved that they be permitted to amend their answers so as to set up policy defenses. Attorney W. L. Jackman, counsel for Hardware Dealers and Church, also moved that he be permitted to withdraw as attorney for Church. On April 26, 1963, the circuit court entered an order which provided as follows:

'2. That the Special Verdict returned by the jury on May 19, 1962 and the judgments subsequently entered thereon be set aside and vacated except with respect to the findings of damages contained in the Special Verdict.

'3. That a new trial be granted in the above entitled action on all issues except the issues of damages.

'4. That the defendants may have thirty (30) days from the date of entry of this order in which to amend their pleadings and to assert such additional defenses as may not heretofore have been pleaded.'

Plaintiff Dunlavy has appealed from this order.

Campbell, Brennan, Steil & Ryan, Janesville, for appellant.

Smith, Rogers & Smith, Fort Atkinson, for respondent Dairyland Mut. Ins. Co. and Otis Gobin.

W. L. Jackman, Madison, for respondent Hardware Dealers Mut. Fire Ins. Co.

Schlotthauer, Jenswold, Reed & Studt, Madison, for respondent Farmers Ins. Exchange.

CURRIE, Justice.

After reviewing the record in this appeal we reach these conclusions:

(1) The movants for new trial, with respect to the negligence issues, failed to fully comply with that part of sec. 270.50, Stats., which provides, 'A motion for a new trial founded upon newly discovered evidence may be heard upon affidavits and the papers in the action (Italics supplied).'

(2) There was no such failure to comply with such statutory requirement with respect to granting a new trial on the insurance coverage issues.

(3) This court on its own motion should grant a new trial in the interest of justice pursuant to sec. 251.09, Stats., with respect to the negligence issue.

The reasons for arriving at these conclusions are set forth below.

Affidavit Requirement with Respect to Negligence Issues

Upon the original trial Dudley and his passengers testified that the Dudley car had come to a gradual stop on the highway because of mechanical trouble. Because of amnesia Dunlavy was unable to recall any of the facts surrounding the accident. Church and Miner similarly testified but Pearson, the other passenger in Church's car, was not called as a witness. There was no intimation in any of the testimony that any enmity had existed between the occupants of the Dudley and Church cars. Neither was there any testimony that some of the occupants of the Dudley car had advanced towards the Church car after the two cars stopped and threatened physical violence to Church and his two passengers. The evidence did disclose that all nine occupants of these two cars were in their late teens or early twenties and lived at Janesville. It would appear that Dunlavy was the oldest of the group, being twenty-three at the time of trial some seventeen months after the accident. On the evening of the accident the six persons in Dudley's car had visited two taverns where they had played cards and drunk beer. One tavern was in Fort Atkinson and one in Whitewater. Church and his two passengers had also been at one of these two taverns while Dudley and his companions were there, and had also played cards and drunk beer.

The showing made in behalf of the movants for a new trial was that Dudley, Church, and those of their passengers who had testified at the trial, other than Dunlavy, had committed perjury. This showing took the form of an affidavit by Church dated November 15, 1962, signed written statements of Miner and Pearson dated December 2, 1962; and affidavits by Attorneys Jenswold and Jackman. Dunlavy's counsel contends that the Church affidavit is defective because it contains no venue or oath and omits the title of the officer in the jurat. The jurat affixed below Church's signature is as follows:

'Subscribed and sworn to before me this 15th day of November, 1962 'County of Rock /s/ George E. Wood My commission expires 1/31/65.'

By taking judicial notice of the records in the office of the secretary of state this court has ascertained that on November 15, 1962, George E. Wood was a duly commissioned notary public and that his commission expires January 31, 1965. While the first sentence in affidavits ordinarily recites that the affiant is swearing under oath, the absence of such recital does not necessarily render an affidavit fatally defective from the standpoint of compliance with sec. 270.50, Stats. The same is true with respect to the jurat's failure to specify the notary's venue. We consider that the statement in the jurat, 'sworn to before me,' in the absence of proof to the contrary, necessarily presumes that the notary duly administered the proper oath to the affiant.

Church's affidavit was witnessed by Leonard Alderson, a sergeant of the sheriff's department of Rock county and it states that it was voluntarily made to Alderson. Further material statements of the affidavit are these: After Church left the Whitewater tavern between 11:30 and 11:45 on the night of the accident he passed the Dudley car, which proceeded 'to stay directly on my tail.' Dudley tried to pass, but Church would not let him. At a stop sign in Milton, Dudley attempted to cut off the path of the Church car. Church succeeded in getting around the Dudley car, but just north of the point of accident Dudley succeeded in passing Church. In the act of so doing, one of the passengers in Dudley's car threw a beer bottle which struck the left front door of the Church car. After passing, Dudley applied his brakes and stopped his car in the approximate center of the road, just over the crest of the hill, forcing Church to stop. A group of boys from the Dudley car then came toward the Church car. Two picked up gravel and threw it at the Church car. Church told Miner to lock the car door. Henning, one of the passengers in the Dudley car, swung his fist at one of the back windows. Threats were then made, such as 'Get out of the car you sons-a-bitches,' and 'Get out of the car or we will kick the _____ out of both you and the car.' Church tried to...