Hoeft v. Friedel

• Decision Date: 19 December 1975
• Docket Number: No. 562,562
• Citation: 70 Wis.2d 1022,235 N.W.2d 918
• Parties: , 90 A.L.R.3d 1316 Michael H. HOEFT, Plaintiff-Respondent, v. Mary L. FRIEDEL et al., Defendants-Appellants, Danny L. Scholten and Hartford Accident & Indemnity Co., Defendants-Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 918

235 N.W.2d 918

70 Wis.2d 1022, 90 A.L.R.3d 1316

Michael H. HOEFT, Plaintiff-Respondent, v. Mary L. FRIEDEL et al., Defendants-Appellants Danny L. Scholten and Hartford Accident & Indemnity Co. Defendants-Respondents.

No. 562 (1974).

Supreme Court of Wisconsin.

Dec. 19, 1975.

This is an action to recover for personal injuries sustained by the plaintiff Michael Hoeft in a head-on automobile collision. Hoeft was in the front passenger's seat of his father's 1966 Volkswagen being driven by the defendant Mary Friedel. The Volkswagen collided with a 1968 Plymouth operated by the defendant Danny Scholten. Mary Friedel, who was eighteen years old at the time, did not have a driver's license; however, she had taken a driver's training course and had been issued a temporary permit authorizing her to drive under certain statutory conditions. ¹ One of the conditions was that she could not operate a vehicle unless accompanied by a licensed person with at least two years' of licensed driving experience. Hoeft, who was twenty-one years old, met this qualification.

The accident occurred on March 14, 1971, at about 2 p.m., as Hoeft and Friedel were proceeding east on Highway 33 in Washington county, about one mile west of West Bend. The couple was returning to West Bend from Allenton where Hoeft had visited a friend. At the point where the accident occurred, Highway 33 was described as straight and level with an eight to 10 foot shoulder and a gently sloping ditch on its south side. All witnesses testified that it was a foggy day and estimates of visibility ranged from 120 feet to 300 feet. Danny Scholten testified that he had been proceeding west on Highway 33 at about 37 miles per hour. He moved into the left or eastbound lane of the roadway to pass another vehicle and had accelerated to approximately 40 to 45 miles per hour when he saw the Volkswagen proceeding toward him about 200 to 300 feet away. Scholten testified that he applied his brakes and headed toward the ditch on the south but collided with the Volkswagen before his auto left the traveled portion of the roadway.

The plaintiff Hoeft testified that Miss Friedel had been operating the Volkswagen at about 45 miles per hour until about one-half mile prior to the accident when he felt the car going somewhat faster. The plaintiff and Mary Friedel were engaged in conversation when he noticed the Scholten vehicle coming toward them in the eastbound lane about 150 to 170 feet away. Miss Friedel took no evasive action, did not apply the brakes and did not respond when the plaintiff yelled at her to turn. Hoeft grabbed the wheel and was attempting to turn off the roadway to the south when the impact occurred. Mary Friedel testified that she first saw the Scholten car when it was four to five car lengths away, that she was scared, and that she heard the plaintiff yell something to her just before the collision but did not know what he said.

The case was submitted to the jury on a special verdict. Counsel for the defendant Mary Friedel requested that the verdict include a question inquiring whether, at the time of the accident, Miss Friedel was acting as the agent of Michael Hoeft. The trial court denied that request. Counsel also requested that jury instructions on the duty of drivers of automobiles as to speed, lookout, and management and control be made applicable to the plaintiff on the theory that, as a driving instructor, he had participated in the operation of the vehicle. That request was denied on the ground that the issue was adequately covered by the standard instruction concerning the duties of a guest passenger. Finally, counsel moved for a directed verdict dismissing the complaint as to the defendants Mary Friedel, American Family Mutual Insurance Company and Sentry Insurance. That motion, together with an alternative motion to find Mary Friedel free from negligence as a matter of law, was also denied.

The jury returned a verdict which apportioned 15 percent of the causal negligence to Mary Friedel, 80 percent to Danny Scholten, and five percent to the plaintiff Michael Hoeft. The jury awarded $9,000 for past pain, suffering and disability, $9,000 for past wage loss, $12,500 for past hospital and medical expenses, and $17,000 for future disability. On motions after verdict, counsel for defendant Danny Scholten moved for judgment notwithstanding the verdict and, in the alternative, for a reduction in the jury award for past hospital and medical expenses from $12,500 to $11,121.92, and in the award for future disability from $17,000 to such lesser reasonable amount as was supported by the evidence. Counsel for defendant Mary Friedel joined in the motion for a reduction in the damage award. They also renewed their motion for a directed verdict dismissing plaintiff's complaint and, in the alternative, for judgment notwithstanding the verdict. Other alternative motions were also made.

The trial court denied all motions after verdict except those relating to the jury's assessment of damages. The court found that the jury awards of $12,500 for past medical and hospital expenses and $17,000 for future disability were unsupported by the evidence. The court further found that $11,121.92 for past medical and hospital expenses and $9,000 for future disability were fair and reasonable under the evidence. A new trial on the issue of damages was granted unless the plaintiff Hoeft elected to accept a judgment for the reduced amounts.

The defendants Mary Friedel, American Family Mutual Insurance Company and Sentry Insurance appeal from the judgment as a whole. Plaintiff Michael Hoeft appeals from that portion of the judgment ordering a reduction of the jury's award for future disability from $17,000 to $9,000.

Kenehan & Huckaby, Cook & Franke, S.C., Milwaukee, for defendants-appellants.

Prosser, Wiedabach, Lane & Quale, S.C., Milwaukee (William R. Croke, Milwaukee, Herbert L. Usow, S.C., Milwaukee, of counsel), for plaintiff-respondent.

BEILFUSS, Justice.

The issues presented are as follows:

(1) Did an emergency exist as a matter of law?

(2) Should the plaintiff have been found equally negligent as a matter of law upon a theory of agency or maintenance of control and should the jury have been allowed to consider plaintiff's negligence in the actual operation and control of the automobile?

(3) Did the trial court err in reducing the jury award of $17,000 for future disability to $9,000?

Appellants contend that the evidence establishes, as a matter of law that Mary Friedel was faced with an emergency and, therefore, could not have been negligent in causing the collision. Prior to the submission of the case to the jury, counsel for appellants moved that a verdict be directed for Mary Friedel or, in the alternative, that she be found free from negligence as a matter of law. Both motions were based on the theory that the emergency doctrine should apply as a matter of law. Following the return of the verdict, these motions were renewed. The trial court denied the motions on the ground that 'there was a wide variance in the testimony as to the extent of visibility in number of feet or car-lengths, and there was a variance with regard to speed of the vehicles and the lapse of time.' In addition to these, Mary Friedel stated she did not see the Scholten car until she was four to five car lengths from it, and Hoeft testified she had increased her speed somewhat from the 45 miles per hour just before the incidents in question. This variance, the court concluded, created a question for the jury as to whether the emergency rule should apply and it was so instructed.

The jury concluded that the doctrine did not apply because it apportioned 15 percent of the causal negligence to Miss Friedel. While the trial judge disagreed with the jury's finding as to an emergency, he did determine that the jury's finding was supported by credible evidence.

The emergency doctrine relieves a person of liability for his action or non-action when faced with an emergency which his conduct did not create or help to create. Crossman v. Gipp (1962), 17 Wis.2d 54, 115 N.W.2d 547; Papacosta v. Papacosta (1957), 2 Wis.2d 175, 85 N.W.2d 790. There are three prerequisites to the application of the emergency rule in an automobile negligence case: (1) The party seeking the benefits of the rule must be free from negligence which contributed to the creation of the emergency; (2) the time element in which action is required must be short enough to preclude deliberate and intelligent choice of action; and (3) the element of negligence being inquired into must concern management and control. Geis v. Hirth (1966), 32 Wis.2d 580, 586, 146 N.W.2d 459; Gage v. Seal (1967), 36 Wis.2d 661, 154 N.W.2d 354, 155 N.W.2d 557.

Ordinarily the application of the emergency rule in automobile case is a question for the jury. Misiewicz v. Waters (1964), 23 Wis.2d 512, 127 N.W.2d 776. To hold that an emergency exists as a matter of law, and thereby remove the issue from the jury, the trial court must conclude that there is no credible evidence which would support a finding that any one of the three prerequisites was not met. Because such a conclusion amounts to a directed verdict for the person faced with the emergency, the court must view the evidence in the light most favorable to the person against whom the verdict is sought to be directed. ² In determining whether the trial court erred, therefore, in refusing to take the issue of Mary Friedel's negligence from the jury and in refusing to change the jury's answers in that regard, this court must review the evidence in the light most favorable to plaintiff's contention that the application of the emergency doctrine was properly a question of fact to be considered by the jury.

The respondents contend that a jury question was presented as to whether Mary Friedel was negligent as to speed or lookout and whether such negligence contributed to or helped...