Hoffman v. Labutzke
| Decision Date | 12 June 1941 |
| Citation | 238 Wis. 164,298 N.W. 583 |
| Parties | HOFFMAN v. LABUTZKE et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order and judgment of the Circuit Court branch of the County Court of Shawano County; C. B. Dillett, Judge.
Reversed.
Action by the plaintiff, Joseph Hoffman, administrator of the estate of Victor Hoffman, deceased, against Lester Labutzke and the Western Casualty and Surety Company of Fort Scott, Kansas, defendants, commenced October 4, 1938, to recover damages for the pain and suffering resulting to the deceased from injuries sustained when the automobile in which he was riding overturned, and for damages to his father, as his surviving parent, resulting from his death from such injuries. The Western Casualty and Surety Company, which issued its insurance policy on the car, is joined as a defendant. On the first trial of this action, the verdict was in favor of the plaintiff, upon which a judgment for the plaintiff was entered February 16, 1939, against both defendants. The defendant insurance company appealed. The judgment was reversed and cause remanded with directions for a new trial as to both defendants on the question of damages and as to whether the insured failed to cooperate with his insurance carrier. See Hoffman v. Labutzke, 233 Wis. 365, 289 N.W. 652. The facts and issues are fully stated in that opinion.
Upon the retrial, the court submitted the following special verdict, questions two and three of which the jury failed to answer. The several subdivisions of questions one and four being answered as indicated.
After verdict, the defendant Labutzke moved that the cross-complaint of the defendant Western Casualty and Surety Co. be dismissed for the reason that the evidence failed to establish that he wilfully and falsely failed to keep and perform the terms, provisions, and conditions of the policy of insurance. The defendant insurance carrier moved that the court direct that judgment be entered upon the verdict dismissing the complaint and that it have judgment notwithstanding the verdict upon its cross-complaint, and for its costs and disbursements. Said defendant further moved that, in the event the court denied the above motion, the answer of the jury to subdivision (a) of question one be stricken and there be inserted in lieu thereof, the sum of $500; that the answer to subdivision (b) be stricken and the sum of $300 be inserted in lieu thereof; and that in the event the foregoing motions be denied, that a new trial be ordered for the following reasons: (1) because the verdict is incomplete and does not entitle the plaintiff to a judgment against this defendant; (2) because the court erred in its instructions to the jury; (3) because the damages are excessive and the result of passion and prejudice; (4) because the court received evidence offered by the plaintiff over objection of the defendant; (5) because the court erred in refusing to give the instructions asked for by this defendant; (6) because the interests of justice require that a new trial be awarded; and (7) because of improper argument to the jury. In its decision on the motions after verdict, the trial court said:
(As to the defendant insurance carrier).
On November 1, 1940, judgment was entered in favor of the plaintiff against defendant Labutzke for the sum of $4,231.80 with interest and for the costs of both trials, dismissing the plaintiff's complaint on the merits as to the defendant insurance company, and in favor of the insurance company against Joseph Hoffman, as special administrator of the estate of Victor Hoffman, deceased, and the defendant Labutzke for its costs on both trials. It was further adjudged:
“That the defendant, Lester Labutzke in violation of the terms, provisions, and conditions of the policy of insurance involved herein wilfully and falsely misrepresented to his insurer, the defendant, Western Casualty and Surety Company of Fort Scott, Kansas, that said Lester Labutzke met an automobile at or near the curve which forced him off the highway and caused the situation which resulted in the damages alleged by the plaintiff; that such misrepresentations were material; that they were relied upon by the defendant, Western Casualty and Surety Company of Fort Scott, Kansas, to its prejudice; that it had a right to rely thereon; and that by reason of such misrepresentations and violations of said policy, such policy was rendered inoperative, null and void as to both plaintiff and the defendant, Lester Labutzke.”
The plaintiff appeals from the order and judgment dismissing the complaint against the defendant Western Casualty and Surety Co. Both defendants have moved for a review on the question of damages. Additional facts are stated in the opinion.
Fischer, Brunner & Strossenreuther, of Shawano, for appellant.
Chas. H. Avery, of Antigo, and Orville S. Luckenbach, of Shawano (Eberlein & Eberlein, of Shawano, of counsel), for respondents.
[1] The issues for retrial of this case were clearly set forth in the former opinion. Hoffman v. Labutzke, supra, 233 Wis. at page 380, 289 N.W. 652. The question of damages and the question as to whether the insured failed...
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Musha v. U.S. Fidelity & Guaranty Co.
...investigating the accident in line of duty who had no interest in the outcome of any lawsuit that might be commenced. Hoffman v. Labutzke, 1941, 238 Wis. 164, 298 N.W. 583, and Kirsch v. Pomisal, 1940, 236 Wis. 264, 294 N.W. 865. The Hoffman Case held a statement made by the plaintiff about......
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Keplin v. Hardware Mut. Cas. Co.
...been held to be admissible. Musha v. United States Fidelity & Guaranty Co. (1960), 10 Wis.2d 176, 102 N.W.2d 243; Hoffman v. Labutzke (1941), 238 Wis. 164, 298 N.W. 583; Kirsch v. Pomisal (1940), 236 Wis. 264, 294 N.W. 865. It is quite true, plaintiffs' counsel had a right to have Exhibits ......