First Wisconsin Land Corp. v. Bechtel Corp., 267
| Decision Date | 25 November 1975 |
| Docket Number | No. 267,267 |
| Citation | 70 Wis.2d 455,235 N.W.2d 288 |
| Parties | FIRST WISCONSIN LAND CORP., Respondent, v. BECHTEL CORP. et al., Appellants. |
| Court | Wisconsin Supreme Court |
Drury & Roets, Portage, for appellants.
Sidney F. Beck, Jr., Friendship, for respondent.
We have concluded that the verdict in this case is not supported by sufficient evidence and that an important issue, which will probably affect the outcome of the case, was not tried. Therefore we reverse and remand for a new trial.
The principal evidentiary dispute in this case has to do with the dates during which the pipeline trench crossing the plaintiff's land was excavated and left open and culverts were placed in a sod waterway for the purpose of supporting the trenching equipment as it crossed the waterway. According to plaintiff's manager, the land was plainted with beans on June 21, 22, 23, and 25, 1968. The trench was started shortly after this planting and stayed open two or three weeks in the months of June or July 1968. The manager testified that the bottoms of the culvert openings were three or four feet above the bottom of the waterway, so that water would not run into the trench while it was open. This dam backed up rainwater, which flooded 40 or 50 acres on the north end of the field. 30 or 40 acres on the south end became very dry and couldn't be irrigated because the irrigation machinery could not cross the pipeline trench. A portion of the field not under water was replanted in the middle of July, but the plaintiff did not get a full harvest because it was too late in the season and frost retarded the crop.
The grade foreman for Houston Contracting Company denied that the pipeline trench was open during the end of June and first part of July. He testified that the trench was dug between July 16 and July 18, 1968. He inspected the field on July 13. The beans were in, the lowlands were flooded and the crops were spotty. The sod waterway had water 12 to 14 inches deep in it and the land was boggy. He went back on the 15th and saw that the water had gone down so that he could use culverts rather than a bridge to support the trenching equipment as it crossed the sod drain. He ordered three culverts put in the sod drain and had logs laid along side to support the culverts. The bottoms of the culverts were approximately three or four inches above the bottom of the waterway. In his opinion the culverts could not have dammed up the waterway.
The field progress reports of Houston Contracting Company were introduced into evidence by the defendants for the purpose of showing when the pipeline trench was dug. These reports covered a period of time from May 6, 1968, to September 30, 1968, and extended from Wisconsin Rapids to Portgage. According to these reports, the trench in this field was dug on July 18 and July 19, 1968, and was backfilled on August 8 and 9. However, the progress report for the week from July 14 through July 20 had originally been dated June 14 through June 20, and the month had been changed in pen. Defendants claimed this was a typographical error. The witness who identified this report was subjected to searching cross-examination on this point. One of the issues raised by defendants on this appeal is that the trial court committed error in allowing such cross-examination, because the reports of July 12 and 13, the reports with the dates changed to July 14 through 20, and the reports for August 8 and 9 were the subject of a demand to admit or deny which was served upon the plaintiff and was answered as follows:
Although the progress reports furnish one of the new trial grounds in this case, the trial court did not err in permitting cross-examination with respect to the change in date. A demand to admit or deny, sec. 889.22, Stats., is designed to obtain concessions from the other party as to the existence of facts or foundation for the admission of documentary evidence. If an admission is made, the evidence is established without the necessity of laying a foundation. If the other party unreasonably refuses to admit, the reasonable expense of laying the foundation is taxed as costs against the party so refusing. Sec. 889.22(4). If, after obtaining an admission, the party making the demand chooses to lay the foundation anyway, there is no purpose served by the demand or admission. The procedure under sec. 889.22 is a sword for the introduction of evidence; it is not a shield for the restriction of cross-examination.
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