Dutcher v. Phoenix Ins. Co.
| Decision Date | 30 January 1968 |
| Citation | 37 Wis.2d 591,155 N.W.2d 609 |
| Parties | Clarence DUTCHER et al., Respondents, v. The PHOENIX INS. CO., a foreign insurance corp. et al., Appellants. |
| Court | Wisconsin Supreme Court |
Campbell, Brennan, Steil & Ryan, James E. Brennan and Thomas J. Basting, Janesville, for appellants. Philip Weinberg, Milwaukee, for respondents.
Six issues are presented on this appeal. They are:
1. Did the trial court improperly deny Britt's affidavit of prejudice?
2. Did the trial court err when it refused to submit active negligence and apportionment questions to the jury concerning Robert Gurney's role in the accident?
3. Did the trial court err when it found Larry Britt negligent as a matter of law?
4. Was the trial court's instruction concerning the immateriality of the purpose of the trip to Beloit improper?
5. Is the $10,000 award for Clarence Dutcher's future loss of earnings excessive?
6. Do appellants' brief and appendix violate the supreme court rules?
Affidavit of Prejudice.
The summons and complaint in this action were served on defendant Phoenix on December 6, 1965. Phoenix answered and the case was noticed for trial. The trial was scheduled to begin on June 7, 1966. Attempts by plaintiffs to personally serve defendant Britt were unsuccessful and service by publication was accomplished on May 20, 1966. On May 23, 1966, Phoenix substituted present counsel for the attorneys who had represented it up until that date. Upon request of new counsel, the plaintiffs agreed on June 1, 1966, to postpone the trial until early July. On June 7, 1966, Britt entered the action via a 'notice of appearance' filed on his behalf by the attorneys for Phoenix. Two days later, the combined defendants asked the court to postpone the trial until September. The court denied this request and defendant Britt filed an affidavit of prejudice against the judge.
The general rule is that when a proper affidavit of prejudice is filed the trial judge has no jurisdiction to do anything but make a proper order of removal and initiate action for calling in another judge. 1
Here, however, the affidavit of prejudice was defective because it was not joined in by the co-defendant. In Morris v. P. & D. General Contractors, Inc., 2 the plaintiff commenced an action against 17 defendants. One of the defendants filed an affidavit of prejudice and requested a change of venue. On appeal, this court held that the affidavit was defective not only because it was not timely filed but also because it was not joined in by all the defendants on the same side.
Again, this court in Will of Rice: Cowie v. Strohmeyer 3 held that all the parties who have appeared and are interested in a controversy constitute one party within the meaning of the statute and must act in harmony when seeking a change of venue grounded on alleged prejudice of the presiding trial judge.
In both Morris and Will of Rice the affidavits of prejudice were submitted in conjunction with a requested change of venue. In the instant case appellant Britt filed his affidavit of prejudice but sought a new judge and not a change of venue. We see no reason why the nature of the request should make any difference and we conclude that Britt's affidavit of prejudice was defective for not being joined in by the other defendant and that his request was properly denied.
Furthermore, it is patently apparent that the affidavit in this case was filed for purposes of delay. While this is not a ground for denial of a change of venue or trial judge, it is a procedure which cannot be approved. 4
Active Negligence Question.
In respect to Dutcher's claim the defendants contend that the trial court should have submitted a question in the special verdict inquiring whether or not Robert Gurney was guilty of active negligence by interfering with the operation of the vehicle. They argue that a 'yes' answer to this question would necessitate a further question comparing the engligence of Gurney and Britt in causing Dutcher's injuries.
Active negligence, as opposed to passive negligence, was explained by Mr. Justice Hallows in Theisen v. Milwaukee Automobile Mut. Ins. Co., 5 wherein it is stated that:
6
If there was an issue of active negligence on behalf of Gurney, then questions inquiring as to the existence of such negligence, its causality, and an apportionment question, should have been submitted to the jury 7 if properly requested.
Initially, it should be pointed out that without introduction of an issue concerning Gurney's active negligence, the special verdict in this case was framed in conformity with the court's recent decision in Vroman v. Kempke. 8
Vroman involved an automobile accident out of which grew two separate cases that were consolidated for trial. The defendant's car had left the road and landed in a ditch. Defendant's wife was killed and another passenger injured. The wife's administratix and the other passenger brought suit. The jury, in answering the lone comparative negligence question, attributed 50 percent active negligence to the defendant and 25 percent passive negligence to each plaintiff. The trial court entered judgment on the verdict allowing each guest-plaintiff to recover 75 percent of her damages from the defendant driver. This court reversed, holding that it was improper to include the passive negligence of the two guest-passengers in the same comparative-negligence question with the active negligence of the host, thus requiring the jury to assume the total of the engligence, active and passive, of all the parties constituted 100 percent.
The jury in the instant case, in separate questions, was asked whether Dutcher and Gurney failed to exercise ordinary care for their own safety and whether such failure was a cause of their injuries. Affirmative answers to these questions required the jury to separately answer comparison questions involving the defendant and one plaintiff. As previously stated, the apportionment was 10 percent-90 percent between Dutcher and Britt, and 40 percent-60 percent between Gurney and Britt.
Therefore, without an issue concerning Gurney's alleged active negligence, the verdict's form was entirely proper.
We have serious doubts whether there was credible evidence to warrant a jury determination passing on the question of Gurney's active negligence. Although appellants state that evidence received during the trial indicated that Gurney grabbed the steering wheel immediately prior to the accident, we find no such testimony in the record. In fact, the only testimony elicited in this regard was a statement at the conclusion of Britt's direct examination, where he said:
'And I hit this piece of ice and started to slide, and when I started sliding I hit my brake. And when I hit my brake, instead of stopping me that gave me more speed, because I started going faster on this piece of ice; so I let up on the brake. And I started weaving; and when I started weaving I cut my elbow on that piece of metal.
'Then I hit another dry piece of pavement, and the car started weaving; I hit my brakes, and by the time I hit my brakes I hit another piece of ice; she started turning, and I tried to turn my wheel to make the car come back. Turning the wheel the same way if you slide, the car comes back.
'About that time Robert Gurney goes like this, and grabbed my arm and he starts for the back seat; and when he grabbed my arm, my arm when down like this, and pulled the car like this, and went right off the road.
'When we had the wreck Robert Gurney was like this, holding my arm, and Dutcher going toward the back seat; and we hit the tree.' (Emphasis added.)
This testimony is equivocal and does not raise a jury question about whether or not Gurney did in fact interfere with Britt's control of the automobile. Even if there is credible evidence to take the question of Gurney's active negligence to the jury, the trial court was correct in holding that appellants were too late in requesting a jury determination of that question.
True, appellants filed an amended answer one week before trial in which they claimed that Gurney interfered with Britt's control of the vehicle. But when the evidence was all in at the trial, their requested verdict questions did not directly raise the question of Gurney's active negligence. Appellants contend that their request as to question 6 raises the question. That request is as follows:
'Question 6:
'Was the plaintiff Robert Gurney negligent in regard to failure to care for his own safety in any of the following respects?
'(a) By entering and riding in the automobile of the defendant?
'Answer: _ _
'(b) By interfering with the operation of the defendant's vehicle at and immediately prior to the accident?
'Answer: _ _' This requested question is clearly directed at the...
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