Hoskins v. U.S. Fire Ins. Co., 91-2957

• Decision Date: 12 January 1994
• Docket Number: No. 91-2957,91-2957
• Citation: 180 Wis.2d 534,509 N.W.2d 432
• Parties: Elmer HOSKINS and Grace I. Hoskins, Plaintiffs-Appellants, v. UNITED STATES FIRE INSURANCE COMPANY, A Foreign Corporation and Badger Paper Company, a Wisconsin Corporation, Defendants-Third Party Plaintiffs. CONTINENTAL CASUALTY COMPANY, A Foreign Corporation, Defendant-Respondent-Cross Appellant, Tweet-Garot Mechanical, Inc., a Wisconsin Corporation, Defendant-Respondent-Cross Appellant-Petitioner, d American Casualty Co. of Reading, PA, A Foreign Corporation and VDH Electric, Inc., a Wisconsin Corporation, Defendants, v. UNITED STATES FIDELITY AND GUARANTY CO., A Foreign Corporation, Defendant-Third Party Defendant, Oscar J. Boldt Construction Co., Inc., Third Party Defendant-Cross Respondent
• Court: Wisconsin Supreme Court

Page 432

509 N.W.2d 432

180 Wis.2d 534

Elmer HOSKINS and Grace I. Hoskins, Plaintiffs-Appellants, v. UNITED STATES FIRE INSURANCE COMPANY, A Foreign Corporation and Badger Paper Company, a Wisconsin Corporation,

Defendants-Third Party Plaintiffs.

CONTINENTAL CASUALTY COMPANY, A Foreign Corporation,

Defendant-Respondent-Cross Appellant,

Tweet-Garot Mechanical, Inc., a Wisconsin Corporation,

Defendant-Respondent-Cross Appellant-Petitioner,

d

American Casualty Co. of Reading, PA, A Foreign Corporation and VDH Electric, Inc., a Wisconsin Corporation, Defendants, v. UNITED STATES FIDELITY AND GUARANTY CO., A Foreign

Corporation, Defendant-Third Party Defendant,

Oscar J. Boldt Construction Co., Inc., Third Party

Defendant-Cross Respondent.

No. 91-2957.

Supreme Court of Wisconsin

Submitted on Brief Nov. 30, 1993.

Decided Jan. 12, 1994.

PER CURIAM.

Upon consideration of the briefs submitted by counsel on this review,

IT IS ORDERED, this review is dismissed as improvidently granted.

Shirley S. Abrahamson, Justice (dissenting ).

The petition for review set forth the following issue for review: Did the court of appeals fail to apply the correct standard of review to this jury verdict? The respondents agreed this was the issue but argued it was not worthy of this court's review. At least three justices concluded that the petition for review should be granted, and it was. Section 809.62(1), Stats. 1991-92, indicates criteria that will be considered in ruling on a petition for a review, but they "neither control ... nor measure ... the court's discretion."

In accordance with the rules of appellate practice and our internal operating procedures, the parties filed briefs in this court, the case was submitted to the court, and the court deliberated on the case. The litigants and the court have expended time, effort and money on the assumption that the case would be heard and decided on the merits. The court should not at this late stage of the appellate proceeding dismiss the petition for review as having been improvidently granted without setting forth the reason for dismissal. ^*

The issue clearly presented in the petition for review is just as clearly presented in the briefs filed by the parties. No surprises have arisen in this case. While some justices may now have second thoughts about deciding the issue presented for review, second thoughts do not, in my opinion, justify dismissing the review as improvidently granted without an intervening change of circumstances.

For the reasons set forth, I dissent from the dismissal and would decide the case.

STEINMETZ, Justice (dissenting.)

The majority orders that the petition for review be dismissed as improvidently granted. The basis for such order is normally that the court will not be able to reach the issue for which we accepted the petition. That is not the case here. While we must review the sufficiency of the evidence, we are required to do so only to decide whether the court of appeals improperly supplanted the jury verdict which was upheld by the trial court on motions after verdict.

The court should reach the issue for which we accepted the petition: Did the court of appeals exceed its authority? In my opinion, we also accepted this petition because the court of appeals' decision is in conflict with prior decisions of this court. See sec. 809.62(1)(d), Stats.

An appellate court should only review a jury verdict to determine if there is any credible evidence that would support the verdict. Roach v. Keane, 73 Wis.2d 524, 536, 243 N.W.2d 508 (1976). The jury heard the following evidence at trial. To begin with, the plaintiff could not clearly explain how the accident happened. He could not remember how many workers were around the accident site during the period immediately preceding his accident or what trades were represented there. He did not remember seeing anyone working in the area.

In addition, the plaintiff could not recall seeing any rust on the pipe hangers. In fact, he stated, "I didn't even pay that much attention to the hanger really to be honest with you."

The plaintiff stated that during his eight-hour shift he did not see anyone working on the pipe that ultimately fell. His other testimony is clearly contradictory to that of several other witnesses. The jury heard the testimony and observed the witnesses and could have disregarded the plaintiff's testimony, considering how weak it was.

Both experts and lay witnesses agreed that Tweet-Garot was not negligent in handling the pipes. One independent witness testified that Tweet-Garot did not engage in dropping pipe from hangers to the floor in a free-fall. Another witness denied that any Tweet-Garot employee was in the vicinity of the accident immediately before it occurred because it happened at shift change. A witness told the jury that an investigation found no witnesses who were at the site of the accident at the time it...