Hamilton v. Reinemann

• Decision Date: 13 February 1940
• Citation: 290 N.W. 194,233 Wis. 572
• Parties: HAMILTON v. REINEMANN et al.
• Court: Wisconsin Supreme Court

233 Wis. 572

290 N.W. 194

HAMILTON

v.REINEMANN et al.

Supreme Court of Wisconsin.

Feb. 13, 1940.

Appeal from a judgment of the Circuit Court for Sheboygan County; Henry A. Detling, Judge.

Modified and affirmed.

Action by Florence Hamilton, administratrix of the estate of Walter Hamilton, deceased, plaintiff, against Clifford Reinemann, executor of the will of Edward Reinemann, deceased, and Lumbermens Mutual Casualty Company, a corporation, defendants, commenced on August 18, 1938, to recover damages arising out of the injury and wrongful death of Walter Hamilton, husband of plaintiff, in consequence of an automobile collision between a truck driven by Walter Hamilton and one driven by an employee of Edward Reinemann, deceased. The action was tried to the court and a jury, and a special verdict rendered. The jury found that Elmer Fockett was negligent with respect to control and management of his vehicle, that this was the cause of the collision, and that the sum of $10,069 would reasonably compensate the estate of Walter Hamilton. The court granted plaintiff's motion for judgment upon the verdict, and judgment was accordingly entered on December 30, 1938. Defendant appeals. The material facts will be stated in the opinion.

A picture of Hamilton truck is shown here:

IMAGE

Bassuener, Humke & Poole, of Sheboygan, and Barnard & Mullen, of Oshkosh, for appellant.

Eastman & Rose, of Marinette, for respondent.

WICKHEIM, Justice.

Defendants' contentions may thus be summarized. (1) The trial court erroneously admitted testimony of witnesses to declarations made after the accident by defendant's driver which tended to convict him of negligence. The objection is that these declarations were hearsay, were not part of the res gestae, and did not constitute impeaching testimony. (2) Except for these statements erroneously admitted, there was no evidence of negligent want of control by defendant's driver. (3) The award of damages for pain and suffering is excessive. In order that the significance of the first two contentions may be understood, it will be necessary briefly to state the facts involved in this accident.

Hamilton, plaintiff's deceased, was a truck driver employed by Wesley Freight Company of Menominee. Defendant Reinemann was a sole trader engaged in the flour and feed business and having his principal place of business at Reedsville, Wisconsin. Elmer C. Fockett was a truck driver in his employ. On the day of the accident, December 30, 1937, Fockett, accompanied by a fellow employee, had driven an International tractor with stake board platform trailer to Chicago, Illinois. He had started about two o'clock in the morning. He unloaded in Chicago and drove to Rockford reaching there about 4:30 or 5 in the afternoon. He then drove to Saukville, stopping only to replenish his supply of gasoline. After leaving Saulkville he proceeded north on Highway 57 at a speed of from twenty-five to thirty miles per hour. The roads were in good condition during most of the time. The Reinemann truck was carrying about eight and one-half tons of corn which had been purchased and loaded during the day. About a mile and a quarter south of the scene of the accident is located a tavern known as the Badger Club. When Fockett passed the tavern it was misting, his windshield wiper was going, and the mist was freezing upon the pavement. The road was slippery from that point to the scene of the accident. There is an up-grade as one approaches the Badger Club from the south, and thereafter a down-grade for a short distance, followed by a slight rise and another down-grade. Thereafter, the road is practically level. At about the time Fockett passed the Badger Club he noticed an automobile travelling in the same direction about two hundred to three hundred feet ahead of him. He claims that a short distance before the scene of the accident the car ahead of him slowed down and he eased his car to a slower speed. He claims to have had no difficulty in doing this by intermittently applying the brakes of his trailer. At about this time Hamilton, with a truck trailer unit, was proceeding south on the same highway and passed the Reinemann truck. At the time of passing the Reinemann truck was moving slightly down grade. According to Fockett's testimony and that of his companion, his truck was wholly on the right side of the highway at the time Hamilton passed him, and Hamilton was also on his right side of the highway and apparently travelling in a straight line. After the cabs of the two vehicles had passed, there was a crash, and from the physical facts it is evident that there was a violent collision between the rear portion of the Reinemann trailer and the front left side of the Hamilton tractor. The left front portion of the Hamilton tractor was badly smashed, and Hamilton was pinned in the wreckage and fatally injured. He was taken out of the truck with the assistance of Fockett, his companion, and some nearby residents, and carried to a farm house. He lived for only an hour and a quarter. After the accident the Reinemann truck was about seven eight feet off the concrete on the east side of the highway, and the Hamilton truck was on the shoulder immediately adjacent to the west side of the highway. The rear end of the Hamilton trailer was opposite the rear end of the Reinemann trailer. A fog lamp, air cleaner, and portions of the hood were lying on the west edge of the pavement immediately to the east of the Hamilton truck. Corn was scattered all over the pavement, and while there was some dispute whether there was more of it on the west or the east side of the center line, photographs indicate that there was a considerable amount of it under the Wesley truck. Literally, there were no surviving eye witnesses to the accident since neither Fockett nor his companion saw the impact and Hamilton was dead. In this state of the evidence, it is contended by defendants that the physical facts are inconclusive and insufficient to prove negligent control, and that the verdict is based upon speculation and conjecture unless it be aided by certain testimony hereafter to be discussed which defendant claims was inadmissible, or, if admissible, could only be considered by the jury for the purpose of impeaching the credibility of Fockett as a witness.

Plaintiff, after first eliciting from Fockett as an adverse witness the testimony that we have outlined above, asked him if he had not stated to other shortly after the accident that he had put on his trailer brakes when the car ahead of him started to slow down, and that his trailer had swayed and jackknifed across the road to the left hand side. This was objected to as hearsay and as not binding upon the principal defendant. Counsel for plaintiff then stated that he was not offering this testimony as substantive evidence but merely to impeach Fockett, who had testified to the contrary. The objection was overruled and several witnesses were called who testified that half an hour or more after the accident Fockett made such statements to them. The trial court admitted this evidence for impeachment purposes only.

[1][2][3][4]It is claimed that the admission of this evidence was error (1) because it constituted an admission and Fockett was not a party to the action and as agent was without authority to bind his principal by his admissions; (2) that the statements were made too long after the accident to be properly a part of the res gestae and admissible under the familiar exception to the hearsay rule; (3) that Fockett, being available as a witness, the statements, althoughagainst his pecuniary interest at the time when made, are not admissible under the exception to the hearsay rule for such statements; (4) that the statements testified to are hearsay and do not constitute proper impeaching testimony. The first three contentions are not only obviously sound but were held to be so by the trial court, and no question is raised by the respondent either as to their validity or application to this case. Obviously, Fockett was not a party. By the overwhelming authority in this state he had no authority as agent or employee to bind his employer by his admissions. Kamp v. Coxe Bros. & Co., 122 Wis. 206, 99 N.W. 366;Garske v. Ridgeville, 123 Wis. 503, 102 N. W. 22, 3 Ann.Cas. 747;Lehan v. Chicago & Northwestern Railway Co., 169 Wis....