Elkey v. Elkey
| Decision Date | 04 June 1940 |
| Citation | 234 Wis. 149,292 N.W. 300 |
| Parties | ELKEY v. ELKEY et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.
On motion to change the Supreme Court's mandate on reversal of a judgment.-[By Editorial Staff.]
Motion denied.
For former opinion, see 290 N.W. 627.
North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for appellant.
Everson, Ryan, & Hanaway, of Green Bay, for respondent.
The case is upon motion to change the mandate, which reversed the decision of the trial court and directed entry of judgment for the plaintiff against the plaintiff's husband, driver of the automobile, and his insurer. The insurer now moves to change the mandate to provide that the trial court consider and determine a motion to that court made at the close of the evidence, and in the absence of the jury, for a trial of the question whether the defendant driver breached the policy of insurance by failing to co-operate with the company, in that upon the trial he testified “materially contrary” to the statements made by him to the company when the company was investigating the circumstances of the accident involved. The company did not ask to amend its complaint nor did it at any time of making the motion ask to be heard or for a ruling upon its motion, and the court made no ruling or comment. The case was thereafter argued and submitted to the jury who returned their special verdict upon answers to which the plaintiff was entitled to judgment against both defendants. The court set aside these answers, and entered judgment for the defendant. Between the receipt of the verdict and the action of the court setting aside the answers therein and directing judgment for the defendant sixty days intervened. During this time the court took no action on the said motion, and the insurer did not request any action. If this of itself did not constitute a waiver of the motion, the company failed to take proper steps to secure a trial of the issue it sought to raise by its said motion. What the insurer wanted was a trial on that issue. This would be a new trial. If the insurer desired a new trial it should have moved after return of the verdict in accordance with sec. 270.49, Stats., ...
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...continually and uninterruptedly. Palombizio v. Murphy, 146 Conn. 352, 150 A.2d 825, 828; Elkey v. Elkey, 234 Wis. 149, 290 N.W. 627, 628, 292 N.W. 300. Safety rules are not hard and fast, nor absolute in application to all circumstances. They are guides to the main issue of whether the acto......
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