Forecki v. Kohlberg

• Decision Date: 11 March 1941
• Citation: 237 Wis. 67,295 N.W. 7
• Parties: FORECKI et al. v. KOHLBERG et al.
• Court: Wisconsin Supreme Court

237 Wis. 67

295 N.W. 7

FORECKI et al.

v.KOHLBERG et al.

Supreme Court of Wisconsin.

Dec. 3, 1940.

Rehearing Denied March 11, 1941.

See 296 N.W. 619.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Briedenbach, Judge.

Affirmed in part and reversed in part.

Action by Mark J. Forecki and Stanley S. Zaleski commenced in the civil court of Milwaukee county on July 29, 1938 against Stanford Kohlberg and his insurance carrier, American Automobile Insurance Company, to recover damages for personal injuries sustained by them in a collision between the Kohlberg and the Zaleski cars at the intersection of South 13th Street and West Grange Avenue in Milwaukee county on the afternoon of February 26, 1938. Subsequent to the commencement of the action, the plaintiff Stanley Zaleski died and the action was revived by his widow, Mary Zaleski, as administratrix of his estate. It is not claimed that his death was caused by this accident. From a judgment of the circuit court for Milwaukee county affirming a judgment entered in the civil court of Milwaukee county on August 14, 1939 in favor of the plaintiffs Forecki and Zaleski, the defendants appeal.

South 13th Street extends in a northerly and southerly direction; its concrete surface is 18 feet, 3 inches wide; and it is an arterial highway. West Grange Avenue extends in an easterly and westerly direction, its concrete surface being 20 feet wide. Defendant Kohlberg was driving in a southerly direction on South 13th Street and Zaleski, with Forecki riding with him in the front seat as his guest, was driving in a westerly direction on West Grange Avenue. There is a tavern on the northeast corner of the intersection known as the Bauer Tavern. Just before the collision occurred, Forecki and Zaleski were in this tavern for five to ten minutes, during which time the Zaleski car was parked at the south side of the tavern building near the arterial stop sign, located at the northeast corner of the intersection and 50 feet east of the near limits of South 13th Street. The collision occurred west of the center line of South 13th Street. The front of the Kohlberg car struck the right side of the Zaleski car in about the center.

On the trial, portions of Zaleski's adverse examination (taken before trial) were offered in evidence. On said examination he testified that he first saw the Kohlberg car when he (Zaleski) was at the stop sign, his car at a standstill; that the Kohlberg car was then about a half block to the north of the intersection; that he had brought his car to a stop within 30 feet of the near side of the intersection, shifted gears, and proceeded to cross the intersection at between 10 and 15 miles an hour; that he thought he had plenty time to cross the intersection; that the Kohlberg car was then traveling about 50 or 60 miles an hour; that when he got to the center line of South 13th Street, the Kohlberg car was then 15 or 20 feet away; that he tried to step on the gas to get across the intersection, but couldn't make it.

Forecki testified that when he and Zaleski came out of the tavern, they got into the Zaleski car near the stop sign and Zaleski then drove west to the corner, stopped his car, shifted his gears, and started to cross the intersection; that he (Forecki) then looked to the north, saw the Kohlberg car when it was about 340 feet north of the intersection; that he again looked to his right and saw the Kohlberg car when it was about 80 feet north of the intersection.

Kohlberg testified that he was driving between 45 and 50 miles an hour as he approached the intersection and that as he got nearer to the intersection, he reduced his speed to 35 to 40 miles an hour; that he saw the Zaleski car when it was at a point 55 feet east of the center line of South 13th Street, that it was then going faster than he was, and that he took it for granted that it was going to stop and that he could go through the intersection.

A police officer, who was at the scene of the accident soon after it happened, testified that he saw skid marks made by the southbound car (Kohlberg's) 75 feet long; that Kohlberg told him at the scene of the accident that he was driving south on 13th Street at a speed of about 50 miles an hour; that when he reached the intersection and saw the other car (Zaleski's) in front of him, he came to a stop to avoid an impact; that the Zaleski car had not stopped for the arterial. The officer testified that he traced the skid marks, which commenced a considerable distance north of West Grange Avenue, and they ended at the tires of the Kohlberg car.

The case was tried to the court and jury. The jury, by its special verdict, found (1) that as Kohlberg approached and entered the intersection, he was negligent in respect to lookout, speed, management and control of his automobile; (2) that Kohlberg's negligence in each respect was a cause of the collision; (3) that as Zaleski approached and entered the intersection, he was negligent as to his rate of speed being too slow as he entered and proceeded to cross the intersection and as to the management and control of his automobile; (4) that his negligence as to slowness of speed and management and control of his automobile were each a cause of the collision; (5) that Forecki acquiesced in the manner in which Zaleski operated his automobile; (6) that Forecki was negligent in failing to give any warning to Zaleski of the approach of Kohlberg's automobile; (7) that Forecki's negligence in this respect was not a cause and did not contribute to the collision; (8) assessed Forecki's damages as follows: (a) medical bills (answered by the court), $110; (b) wage loss, $450; (c) personal injuries, $4,000; (9) assessed Zaleski's damages as follows: (a) damage to automobile (answered by the court), $125; (b) medical bills, $10; (c) personal injuries, $1,500; and (10), apportioned the negligence of Zaleski and Kohlberg-Zaleski 25% and Kohlberg 75% and apportioned the negligence of Forecki and Kohlberg-Forecki 10% and Kohlberg 90%.

The usual motions were made after verdict. All of the defendants' motions were denied and judgment was entered in favor of the plaintiff Mark J. Forecki against defendants for the sum of $4,637.82 damages and costs, and in favor of the plaintiff Mary Zaleski, administratrix of her husband's estate, against defendants for the sum of $1,258.19 damages and costs. On appeal to the circuit court, the judgment as entered in the civil court was affirmed with $10 costs of motion. This appeal is from that judgment. Further material facts will be stated in the opinion.

Bendinger, Hayes, Kluwin & Schlosser, of Milwaukee, for appellants.

Robert A. Hess, of Milwaukee (Arthur Wickham, of Milwaukee, of counsel), for respondents.

MARTIN, Justice.

The substance of the several assignments of error is as follows: (1) that the court erred in permitting Robert A. Hess, attorney for both plaintiffs, and Arthur Wickham, of counsel to Robert Hess in the Zaleski case, to represent adverse interests on the trial of the action; (2) that the court erred in permitting Mr. Wickham to cross-examine the plaintiff Forecki and to thereby elicit from him evidence bearing on his assumptionof risk so far as his legal relationship to the deceased Zaleski was concerned; (3) that the court erred in submitting question No. 5 (on assumption of risk) over objections of defendants' counsel, and likewise erred in refusing, on motions after verdict, to strike the question from the verdict, and in refusing to grant contribution to the defendants against Zaleski's estate as to any judgment in favor of Forecki against defendants; (4) that the court erred in refusing to change certain answers in the special verdict; (5) that the court erred in refusing to reduce the damages assessed in favor of each plaintiff; (6) that the court erred in refusing to hold that each plaintiff was guilty of 50% or more of the total negligence; and (7) that the court erred in denying defendants judgment dismissing the complaint as to both plaintiffs.

In connection with the first and second assignments of error, defendants contend that attorneys Hess and Wickham represented adverse interests to the prejudice of defendants in violation of the law of attorney and client. In this connection it appears that the plaintiffs were friends, both received injuries in the same accident, and both were of the opinion that the defendant Kohlberg was solely to blame for the accident and their resulting injuries. Together they consulted with attorney Hess who brought this action in their behalf, serving a joint complaint. Defendants answered and counterclaimed against the plaintiff Zaleski for contribution in the event that they were held liable to the plaintiff Forecki. Zaleski was covered by insurance. His insurance carrier retained Mr. Wickham to represent him on the counterclaim. In making reply to the counterclaim on behalf of the Zaleski estate, it appears that same was signed by Mr. Hess as attorney and by Mr. Wickham as of counsel.

Defendants' objections are particularly directed at Mr. Wickham's cross-examination of the plaintiff Forecki as laying the basis for a finding of assumption of risk on the part of Forecki which the jury found by their answer to the fifth question of the verdict, which finding, if there is any evidence to sustain it, would defeat any claim which Forecki might have against Zaleski's estate, and likewise defeat defendants' claim for contribution. In this connection it appears that Mr. Wickham examined Forecki as to his experiences in riding with Zaleski on former occasions. Forecki testified that he had ridden with Zaleski quite often over a period of about a year; that they had ridden together in the city and out in the country, when Zaleski had stopped arterial highways when the traffic was heavy and when it was light. Finally Mr. Wickham asked the following question: “Was the manner in which Mr. Zaleski...