Gross v. Midwest Speedways, Inc., 75-551

Decision Date30 November 1977
Docket NumberNo. 75-551,75-551
Citation260 N.W.2d 36,81 Wis.2d 129
PartiesGeorge L. GROSS, Plaintiff-Respondent, v. MIDWEST SPEEDWAYS, INC., Defendant-Appellant, David Denow and Milwaukee Mutual Insurance Company, Defendants.
CourtWisconsin Supreme Court

This is an appeal from a judgment in favor of the plaintiff, George L. Gross, against the defendant-appellant, Midwest Speedways, Inc., and defendants David Denow and his insurer, Milwaukee Mutual Insurance Company. The action was brought by the plaintiff for damages for the personal injuries he sustained when he was hit by Denow's trailer rig as he was walking along an exit road from the pit area to the parking lot of the speedway.

This case has been before the court before. See: Gross v. Denow, 61 Wis.2d 40, 212 N.W.2d 2 (1973). In the first appeal, this court set aside a jury verdict finding Midwest 70 percent negligent, Denow 25 percent negligent, and the plaintiff 5 percent negligent on the ground that the negligence of plaintiff "was at least equal to that of the racetrack operator who built and maintained the road involved." Id. at 51, 212 N.W.2d at 8. The judgment in favor of the plaintiff Gross was affirmed in part, reversed in part, and the case remanded for a new trial on the issue of negligence.

On remand, Midwest moved for summary judgment. The trial court denied this motion. Subsequently, Midwest moved for a nonsuit and a directed verdict. The trial court denied these motions. Midwest attempted to submit a proposed jury instruction stating that it had been determined in the first appeal that Midwest was not liable to plaintiff for the injuries sustained. The trial court refused to give the requested instruction. Following the jury verdict apportioning 10 percent of the total causal negligence to plaintiff, 10 percent to driver Denow and 80 percent to Midwest, Midwest moved for judgment notwithstanding the verdict and for a new trial. The trial court denied these motions. The defendant Midwest appeals.

Ernest J. Philipp (argued), Robert J. Philipp, Thomas L. Philipp and Otjen, Philipp & Van Ert, S. C., Milwaukee, for defendant-appellant.

James J. Murphy (argued) and Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for plaintiff-respondent.

ROBERT W. HANSEN, Justice.

Of the various trial court rulings challenged on this appeal, the first is the trial court's denial of Midwest's motion for summary judgment. This motion was based on the decision of this court in the first appeal involving the same parties and the same claim. 1 If the denial of the motion for summary judgment is before us on this appeal, the propriety of that denial is dispositive of this appeal. For if the trial court erred in denying summary judgment, a reversal is required and summary judgment in favor of Midwest must be granted. However, if the trial court did not err in denying the motion for summary judgment, other issues remain to be resolved.

The preliminary question is whether the trial court's denial of Midwest's motion for summary judgment is now before us. The plaintiff's claim is that Midwest lost the right to challenge this ruling when it failed to appeal the denial of its motion. It is correct that the order denying Midwest's motion for summary judgment was appealable. 2 However, it does not follow that the failure to appeal immediately from the order denying the motion for summary judgment waives the right to challenge the denial in an appeal from the final judgment. An order overruling a demurrer is also, by statute, an appealable order. 3 Where a plaintiff did not immediately appeal from an order overruling a demurrer, but, as here, appealed from the final judgment of the trial court, we held that the order overruling the demurrer is reviewable in the appeal from the judgment. 4 What we held as to orders overruling a demurrer applies under the same statutes to orders denying motions for summary judgment. It is true that our court has held that where, following denial of his motion for summary judgment and without making any subsequent motion for directed verdict, a defendant voluntarily elected to proceed with trial before a jury, he waived his right to appeal the denial of summary judgment. 5 A voluntary election to proceed is absent in the case before us. Midwest moved for a nonsuit and a directed verdict, submitted proposed instructions to the jury as to its nonliability, moved for judgment notwithstanding the verdict. All of these motions were predicated on the same error on which the motion for summary judgment was brought. Under the applicable statutes and the Sawejka holding, we hold that Midwest did not forfeit its right to challenge the denial of its motion for summary judgment by not appealing that denial when it was made.

Similarly, we find no waiver of the right to challenge the denial of the motion for summary judgment in Midwest's failure to seek a writ of mandamus following the denial. There are decisions of this court holding that mandamus is the exclusive remedy to compel a trial court to follow a mandate of this court. 6 However, these cases deal with a mandate ordering the trial court to take a particular action or enter a particular judgment. In such a situation we have held: "The sole remedy of defendant is an original action invoking the supervisory power of this court to compel the lower court to follow its mandate." 7 In the appeal of the first judgment in this case, the mandate of our court, at least the portion of it here involved, stated "and cause remanded for a new trial on the issue of negligence only." 8 In retrospect, it is evident that a more detailed blueprint of the status of Midwest on retrial would have been helpful. Under the mandate of this court, as actually worded, the trial court exercised its discretion as to whether the mandate permitted the retention of Midwest as a party defendant on retrial. Mandamus lies to compel the trial court to take a specific action which should have been taken, but mandamus does not lie unless the duty of the trial court is plain and the refusal to proceed within its jurisdiction to perform that duty is clear. 9 Where the mandate of this court orders "a new trial on the issue of negligence only," and where a new trial as to negligence was in fact ordered, we do not believe that the basis for issuing a writ of mandamus is established.

Nor do we find merit in the plaintiff's contention that Midwest lost its right to move for summary judgment by not moving for a rehearing on the first appeal to clarify the mandate. We point out that the plaintiff could also have moved for a rehearing to clarify the mandate, but did not. While rehearing is an appropriate mechanism for resolving doubts as to a mandate or an opinion, 10 it does not follow that Midwest's failure to move for a rehearing following the decision in the first appeal on the speculative ground that the trial court might misinterpret the mandate on remand should bar either its subsequent motion for summary judgment on retrial or an appeal of the denial of that motion from the judgment entered on the second trial.

Having held that the denial of the motion for summary judgment is properly before us on this appeal, we now consider whether the trial court erred in denying the motion. This in turn brings us to an analysis of the first decision, Gross v. Denow. 11 In the first trial, the jury apportioned 70 percent of the causal negligence to Midwest, 25 percent to Denow and 5 percent to the plaintiff Gross. Our court held: "The jury verdict that the one who maintained the road was 14 times as causally negligent as the person who chose it as an egress cannot stand." 12 Apparently the plaintiff interprets this statement as merely setting aside the verdict apportionment as "grossly disproportionate." 13 When this court determines that the percentages attributed to the parties in light of the facts are grossly disproportionate, the court should grant a new trial in the interests of justice. 14 However, in the very next paragraph, the opinion concludes:

"In the case before us, where the plaintiff selected from among three exit routes the one in which pedestrian and vehicular traffic were commingled, and where he failed to keep a proper lookout for vehicles passing to his right while he proceeded along the route, his negligence in both respects combined was at least equal to that of the racetrack operator who built and maintained the road involved." 15

Earlier in the opinion we noted that where it appears " '. . . that the negligence of the plaintiff is as a matter of law equal to or greater than that of the defendant, it is not only within the power of the court but it is the duty of the court to so hold.' " 16 Noting that frequenters of a public place are ". . . under an obligation to exercise ordinary care for their own safety," 17 we set forth, case by case, prior decisions of this court holding that the negligence of a frequenter of a public place is at least equal to or greater than that of the defendant as a matter of law. 18 Following these citations to similar situations, in the same paragraph this court held the negligence of plaintiff here "was at least equal to that of the racetrack operator" and that "(s)etting aside the jury apportionment is required." 19 Where either the appellate court or a trial court finds that the evidence does not support the apportionment made by a jury and further finds as a matter of law that the negligence of the plaintiff equals or exceeds that of the defendant, the court's finding denies recovery to the plaintiff against such defendant. 20 In the case before us, that was the holding of this court in Gross v. Denow, and that holding became the law of this case on retrial. 21 It may be argued that the mandate of this court on the first appeal, if not inconsistent with the opinion, is less explicit than the opinion is on the consequences on retrial of holding that p...

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  • State ex rel. JH Findorff v. Milw. Cty.
    • United States
    • Wisconsin Supreme Court
    • April 6, 2000
    ...private or municipal corporation or an inferior court to perform a particular act." Id. at 650 (citing Gross v. Midwest Speedways, Inc., 81 Wis. 2d 129, 135, 260 N.W.2d 36, 38-39 (1977)). Petitions simply requesting "supervisory" relief recognize the similarity in substance between a writ o......
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    ...private or municipal corporation or an inferior court to perform a particular act." Id. at 650 (citing Gross v. Midwest Speedways, Inc., 81 Wis.2d 129, 135, 260 N.W.2d 36, 38-39 (1977)). Petitions simply requesting "supervisory" relief recognize the similarity in substance between a writ of......
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    ...private or municipal corporation or an inferior court to perform a particular act." Id. at 650 (citing Gross v. Midwest Speedways, Inc., 81 Wis. 2d 129, 135, 260 N.W.2d 36, 38-39 (1977)). Petitions simply requesting "supervisory" relief recognize the similarity in substance between a writ o......
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