Fontaine v. Fontaine

• Decision Date: 13 October 1931
• Court: Wisconsin Supreme Court
• Parties: FONTAINE v. FONTAINE ET AL.

205 Wis. 570

238 N.W. 410

FONTAINE

v.FONTAINE ET AL.

Supreme Court of Wisconsin.

Oct. 13, 1931.

Appeal from an order of the Circuit Court for Columbia County; C. F. Van Pelt, Circuit Judge.

Affirmed.

Action for damages for personal injuries commenced on the 29th day of October, 1930, by Albina Fontaine, plaintiff, against Walter J. Fontaine and Travelers Insurance Company, a foreign corporation, defendants. From an order granting a new trial entered on the 3d day of February, 1931, the plaintiff appeals.Grady, Farnsworth & Walker, of Portage, for appellant.

Grotophorst, Quale & Langer, of Baraboo, for respondents.

OWEN, J.

The plaintiff Albina Fontaine, and the defendant Walter J. Fontaine, are wife and husband. They purchased a Ford coupé on May 3, 1930. Between that time and June 22, 1930, the husband had driven the car about 1,200 miles. The plaintiff, Mrs. Fontaine, had usually ridden with him while he was driving the car during that time. On June 22, 1930, they left Portage at one o'clock in the afternoon in the Ford coupé on a pleasure trip. Mr. and Mrs. Koloske of Portage also accompanied them on this trip in their automobile. They drove from Portage to Prairie du Sac, the Fontaines driving ahead, and the Koloske car following in the rear. At Prairie du Sac they concluded to return by way of Baraboo. On leaving Prairie du Sac, the Koloske car took the lead, the Fontaine car following. For some distance out of Prairie du Sac they followed the concrete highway, until they turned onto a detour, occasioned by the cement road being under construction. The detour was covered with gravel, which had been treated with some sort of preparation. The Fontaines testified that the gravel was about two inches deep, and was the deepest gravel on which they had ever driven. They claimed that on this detour Mr. Fontaine drove the car at a rate of speed of about 40 to 42 miles an hour, which was the fastest that he had ever driven a car while they were riding together.

After proceeding along the detour for about three miles, they met a car the driver of which yelled to Mr. Fontaine to keep to his own side of the driveway and not to “hog the road.” His wife then asked him to slow down, but he did not. He was rather excited because of the rebuke about “hogging the road” and his wife telling him to slow down. He turned to the right, lost control of the car, ran into a ditch on the right side of the road, the car running about 100 feet after entering the ditch and tipping over, causing personal injuries to the plaintiff.

The jury returned a special verdict finding that the defendant Fontaine was negligent in respect to speed, lookout, and control, that his negligence was the cause of plaintiff's injury, and that there was no negligence on the part of the plaintiff. After the return of the verdict, plaintiff moved for judgment on the verdict, the defendant moved for judgment on the verdict, for judgment dismissing the complaint on its merits, for an order changing the answers of the jury to the various questions in the special verdict, and for a new trial on seven different grounds. The court ordered “that the verdict in the above entitled action be and the same is hereby set aside and a new trial granted on the grounds that the case was erroneously submitted to the jury, prejudicial to the defendant, and in the interests of justice.” In his opinion, the trial judge said: “I am fully convinced that a new trial must be ordered in this case for two reasons--first, for an erroneous submission of this case prejudicial to the defendant; and, second, in the interests of justice. I do not think it is necessary for this court to carefully set out at length the facts upon which the two above reasons are based. As to the first reason, I am fully convinced that the court should have submitted to the jury several other questions in its special verdict, and as to the second reason for granting a new trial, I believe that the attorneys did not present all the evidence bearing upon this case. The only evidence in the record as to the condition of the road in question was that there was loose gravel upon the road. Loose gravel is a relative term, for there may be loose gravel a few inches deep or there may be loose gravel surface deep only. Again, no evidence was introduced as to the condition of the tires after the accident, which I think is very important in this case, for not to have this evidence above stated it would seem that the jury's verdict is based upon speculation alone, for neither the plaintiff nor defendant had any idea how the accident happened.”

The plaintiff appeals from that order, and challenges as sufficient grounds for a new trial the reasons set forth in the opinion of the trial judge. It is plain that the trial judge did not approve of the verdict. He expressed the feeling that justice had not been accomplished by the verdict. Even though the reasons assigned by him for granting a new trial did not constitute reversible error, and did not require the granting of a new trial as a matter of law, it does not appear that the reasons expressed in his opinion constituted the only reasons which prompted the granting of a new trial. One of the considerations prompting the granting of a new trial is expressly stated to be “in the interests of justice.” He follows this by saying he does not think it is necessary “to carefully set out at length the facts upon which the two above reasons are based. While there was evidence in the case relating to the depth of the gravel and to the condition of the tires, the court seemed to feel that the evidence bearing on both of these facts was meager, and that more satisfactory evidence upon those points would and could be produced upon a new trial.”

The record shows that this is an action by the wife against her husband. It also shows that the husband is not averse to a recovery by the wife. The testimony given by both husband and wife upon the trial does not conform to written statements made by them to the insurance company prior to the trial. Before the trial, the husband signed a statement giving it as his opinion that the accident was caused by a blowout, while at the trial he presumed that his speed was the cause of the accident. Prior to the trial, the plaintiff signed a statement to the effect that they...