Guinther v. Schucht
| Decision Date | 05 January 1965 |
| Parties | Malcolm GUINTHER et al., Respondents, v. Herman SCHUCHT et al., Appellants. |
| Court | Wisconsin Supreme Court |
On May 12, 1958, appellant Herman Schucht was hauling gravel in his 1956-GMC dump truck to a new subdivision development for street grading purposes. On one particular dumping run, Schucht was moving forward at three or four miles an hour with the box elevated about halfway, when the truck tipped over on its right side, crushing the automobile of the respondent, Malcolm Guinther. Guinther and Schucht were the only witnesses to the accident. On previous runs, Schucht had dumped between ten and 15 loads. The truck did not require repairs after it was lifted off the car the next day, and Schucht continued hauling gravel. On July 1st he traded in the truck which had a 'ram' or 'hoist' on each side to raise and lower the box, and purchased a new truck which had only a single 'ram.' John Ratz purchased the truck on July 26th. He testified that when he bought it the right ram was being repaired and that he noticed a 'malfunction' of the ram as soon as he began using the vehicle. About six days after the acquisition, the right ram collapsed causing the truck to tip over on its right side.
Dale Downing, an attorney who was in the real estate business with respondent, testified that sometime between two and ten days after the accident Schucht told him 'that this is the third time he had trouble with the dump ramps [rams], and the next truck I purchase is going to have a single ramp [ram].' Appellant did not recall any such conversation.
Respondents Guinther and the Newark Insurance Company, the collision insurer of his automobile, sued the appellant and his liability insurer, Herman Mutual Insurance Company, Incorporated, to recover for the damage done to the vehicle. The case was tried to the court and appellants appeal from the judgment finding Schucht negligent and awarding damages to the plaintiffs.
Further facts will be stated in the opinion.
Allan & Storck, Mayville, for appellants.
Grootemaat, Cook & Franke, Milwaukee, Francis R. Croak, Milwaukee, of counsel, for respondents.
The sole issue presented on this appeal is whether the evidence sustains the trial court's finding that Schucht was causally negligent in operating his truck with a defective hoist mechanism. It is axiomatic that the trial court's findings will not be disturbed unless they are against the great weight and clear preponderance of the evidence. 1 The evidence must be reviewed from the standpoint most favorable to respondent. 2 In finding Schucht negligent, the trial judge admittedly relied heavily on the testimony of Downing and Ratz. Since their combined testimony is the only evidence introduced from which it could be inferred that there actually was a defect in the ram, and further since Downing's testimony was the only evidence which would indicate that Schucht was aware of any defect, the judgment must stand or fall on the sufficiency of this evidence.
Appellants assail the credibility of Downing's testimony in several respects. First appellants argue that the reference on direct examination to 'ramps' rather than 'rams' indicates a vague recollection on the part of the witness. This highly technical argument ignores the sum and substance of the testimony. Furthermore, on cross examination Downing correctly referred to the mechanism as a 'ram.' Second, appellant Schucht argues that his own testimony that he did not remember speaking to Downing and that he had never had any trouble with the ram sufficiently rebutted Downing's story. A mere failure by Schucht to recall any conversation does not cast fatal doubt upon Downing's testimony. An issue of credibility was fairly raised to be resolved by the trier of fact. Furthermore, Schucht's testimony that he had no previous trouble with the ram does not of itself negate Downing's story. The trier of fact judges the credibility of the witnesses and the weight of the testimony. 3 Downing's recollection is consistent with Ratz's assertion that the right ram was defective when he purchased the truck and that it ultimately collapsed, and the trial judge could reasonably rely on his testimony. Third, appellants claim that developments subsequent to the accident wherein the truck neither required repairs nor experienced further trouble contravert Downing's testimony. That the ram was being repaired when Ratz obtained the truck and that the ram...
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