Haase v. Employers Mut. Liability Ins. Co.

• Decision Date: 13 May 1947
• Citation: 27 N.W.2d 468,250 Wis. 422
• Parties: HAASE et al. v. EMPLOYERS MUT. LIABILITY INS. CO. LEMKE v. HAASE (two cases).
• Court: Wisconsin Supreme Court

250 Wis. 422

27 N.W.2d 468

HAASE et al.

v.EMPLOYERS MUT. LIABILITY INS. CO.

LEMKE

v.HAASE (two cases).

Supreme Court of Wisconsin.

May 13, 1947.

Appeals from judgments of the Circuit Court of Milwaukee County; Otto H. Breidenbach, Judge.

Judgments affirmed in Cases Nos. 153 and 154. Judgment in Case No. 159 is affirmed in part, and reversed in part.In Case No. 159 Andrew C. Haase and his wife, Hazel Haase, joined as plaintiffs in bringing an action against the defendant Employers Mutual Liability Insurance Company of Wisconsin, as the automobile liability insurer of Fred Lemke, deceased, to recover for damages sustained by each plaintiff as the result of alleged negligence of Fred Lemke in operating his automobile, which collided with Andrew C. Haase's automobile, which he was driving. Fred Lemke died as the result of injuries sustained in the accident. The defendant insurer filed an answer denying negligence on the part of Fred Lemke, and also filed a cross-complaint against Andrew C. Haase demanding judgment against him for contribution of fifty per cent. of any amount which it may be compelled to pay Hazel Haase.

In Case No. 154 the plaintiff Anna Lemke, as special administratrix of the estate of Fred Lemke, deceased, brought an action against Andrew C. Haase as defendant, charging that Fred Lemke's death was caused by defendant's negligent operation of his automobile, and seeking to recover from him damages for pain and suffering sustained by Fred Lemke; and likewise seeking to recover Anna Lemke's damages for the pecuniary injury and for the loss of the society and companionship of her husband, Fred Lemke. Andrew C. Haase filed an answer denying plaintiff's allegations as to negligence on his part and as to the damages sought to be recovered therefor; and demanded judgment dismissing the complaint.

In Case No. 153 the plaintiff Anna Lemke brought an action against the defendant Andrew C. Haase to recover her damages for injuries to her person which she alleged were caused by Andrew C. Haase's negligence in operating his automobile. The defendant filed an answer denying the alleged negligence on his part, and also filed a cross-complaint against Fred Lemke's automobile liability insurer, to recover from it such amount, by way of contribution, as Andrew C. Haase would be entitled to if Anna Lemke recovered a judgment against him in Case No. 153.

The three cases were consolidated for a joint trial at which all ultimate issues under the evidence in relation to the several cases were submitted by questions in one special verdict. And upon the jury's findings in answer thereto, with the exception of one answer amended by the court, it entered judgment in Case No. 159 for the recovery of damages from Fred Lemke's automobile liability insurer by Andrew C. Haase of $5,185, and by Hazel Haase of $300; and entered judgment in Case No. 153 for the dismissal of Anna Lemke's complaint against Andrew C. Haase to recover damages for the injury to her person; and likewise entered judgment in Case No. 154, dismissing the complaint in the action by Anna Lemke as special administratrix against Andrew C. Haase. Appeals from the judgments were taken by Employers Mutual Liability Insurance Company of Wisconsin in Case No. 159; by Anna Lemke as special administratrix in Case No. 154; and by her personally in Case No. 153.Quarles, Spence & Quarles, of Milwaukee (Edward H. Borgelt and Richard S. Gibbs, both of Milwaukee, of counsel), for appellant Employers Mut. Liability Ins. Co.

Rheingans & Ketterer, of Milwaukee (Oliver Rheingans, of Milwaukee, of counsel), for appellants Anna Lemke and Anna Lemke, special adm'x, etc.

Gold & McCann, Michael Levin and Bernard G. Wozniak, all of Milwaukee, for respondents.

FRITZ, Justice.

The collision involved herein occurred at 10 A. M. on February 13, 1944, in the Town of Greenfield, Milwaukee county, in the intersection of South 92d Street and West Oklahoma Avenue, an arterial highway. There were ‘Stop’ signs to control traffic approaching from either the north or south on 92d Street. The front of an automobile operated by Fred Lemke, travelling westward on Oklahoma Avenue, struck the middle of the right side of an automobile which Andrew C. Haase was driving northward on 92d Street. In the area which was between the approaching cars to the south of Oklahoma Avenue and to the east of 92d Street, there was no obstruction of vision so that Lemke, travelling westward on Oklahoma Avenue toward its intersection with 92d Street, had a clear and unobstructed view of the intersection and also along 92d Street for at least 332 feet south of Oklahoma Avenue while he was approaching the intersection from more than 830 feet east of the place of the collision; and likewise, while approaching from at least 332 feet to the south thereof Haase could continuously see Lemke's car while it was approaching from at least 830 feet east of the intersection. The three lane concrete pavement of Oklahoma Avenue, on which Lemke was approaching, sloped slightly downward toward the 92d Street intersection; and the north lane, in which Lemke was driving, was clear of ice and an open roadway which was dry and not slippery. But on South 92d Street, rain during the night had frozen so that the roadway thereof, on which Haase approached from his home to the south, was uniformly icy; and while on his way his car skidded because of the icy road when he came to another arterial on 92d Street, about one half mile from the scene of the accident.

The stop sign on 92d Street was 50 or 60 feet south of the Oklahoma Avenue intersection. Haase testified that when he was 20 feet south of that sign and going about 10 miles per hour, he first applied his brakes; and subsequently he testified he estimated his speed at about that time at 15 miles per hour. At the coroner's inquest he had testified that he was not going as fast as 25 miles per hour; and on an adverse examination he testified, ‘As far as I know, my speed was probably about twenty-five miles per hour’. He testified also he was about 34 feet from Oklahoma Avenue when he first took his foot off the gas, and was a little closer than that when he applied his brakes; that he noticed he was sliding about 20 feet after he put on his brakes and then was about 30 feet from Oklahoma Avenue; that he then tried to turn to the left in an attempt to avoid the collision which he thought would happen if he could not stop or turn, but that his car did not turn; that it continued to slide straight ahead and into the path of the Lemke car; that there was nothing about the motion of Haase's car which was unusual or served as a warning that it was out of control, nor did he sound his horn as such a warning.

On the other hand, there was evidence that Lemke, approaching in the north lane of Oklahoma Avenue, applied his brakes and skidded about 45 feet before his car struck the middle of the right side of Haase's car, in about the center of the intersection. On the trial Haase testified his car was stopped at the time of the collision; but at the coroner's inquest he had testified he did not know, but it seemed to him it was stopped or was moving slowly. Mrs. Lemke testified positively that Haase's car was not stopped on the highway, but was moving. However, after the Lemke car struck Haase's car, it did not come to a stop until it was off the pavement, in a ditch to the northwest of the intersection, and facing southeasterly, over 52 feet northwest of the point of impact. The Lemke car continued northwestward about 45 feet until it stopped facing eastward while still on the pavement. Mrs. Lemke testified her husband was driving about 35 miles per hour just before the accident. At the coroner's inquest she had testified she ‘imagined’ his speed was about 40 miles. Due to Lemke's death in the accident there is no testimony nor any proof of any statement made by him. But, as is claimed in Haase's brief, that Lemke was driving his car at a high, dangerous rate of speed can reasonably be inferred and deemed established by the physical facts that, after skidding 45 feet on bare cement pavement, his car struck Haase's car with still such speed and force that it drove the frame members thereof to within 13 inches of each other, ripped the left door off its hinges, tore off about one third of the top, and caused other major damages, and forced the car at least 52 feet across the intersection and into the ditch on the northwest corner thereof.

The jury found that Lemke was causally negligent in respect to lookout and speed; but was not negligent in respect to management and control. His automobile liability insurer (hereinafter called the insurer) contends there is no evidence to sustain the jury's finding that he was causally negligent as to lookout and as to speed. The insurer claims that the only evidence which reflects any light whatever on Lemke's conduct in respect to lookout is the fact that he did apply his brakes and actually skidded the last 45 feet before the impact; that this is insufficient to show negligent lookout on his part; and that as there is no direct evidence as to what he was doing with respect to lookout immediately preceding the accident, and he died as a result thereof, there is applicable under such circumstances the presumption that he used due care for his own safety, until there is competent evidence to overcome that presumption. In support of these conclusions the insurer cites Ray v. Milwaukee Automobile Insurance Co., 230 Wis. 323, 283 N.W. 799;Potter v. Potter, 224 Wis. 251, 272 N.W. 34.

The presumption therein stated can, in the cases at bar,...