Household Utilities, Inc. v. Andrews Co., Inc.

• Decision Date: 06 January 1976
• Docket Number: No. 144,144
• Citation: Household Utilities, Inc. v. Andrews Co., Inc., 236 N.W.2d 663, 71 Wis.2d 17 (Wis. 1976)
• Parties: HOUSEHOLD UTILITIES, INC., a Wisconsin Corporation, Appellant, v. The ANDREWS CO., INC., a Wisconsin Corporation, Respondent. (1974).
• Court: Wisconsin Supreme Court

Page 663

236 N.W.2d 663

71 Wis.2d 17

HOUSEHOLD UTILITIES, INC., a Wisconsin Corporation, Appellant, v.The ANDREWS CO., INC., a Wisconsin Corporation, Respondent.

No. 144 (1974).

Supreme Court of Wisconsin.

Jan. 6, 1976.

Cahill & Fox, Milwaukee, for appellant; Bruce C. O'Neill, Milwaukee, of counsel.

Multhauf, Wimmer & Evans, Waukesha, for respondent; John C. Curran, Waukesha, of counsel.

BEILFUSS, Justice.

Both parties state the issue on this appeal to be whether the trial court erred in granting defendant's motion for nonsuit.The test that has been applied by this court in such cases is the same as that to be employed by the trial court in ruling on the motion in the first instance.That is--the court must view the evidence in the light most favorable to the plaintiff; and if there is any inference which might reasonably be drawn therefrom which supports the plaintiff's claim, the motion for nonsuit should be denied.¹In this state, involuntary nonsuit is a common-law motion equivalent to a demurrer to the plaintiff's evidence.²This court has expressed 'grave doubt' as to the propriety of a motion for involuntary nonsuit where, as here, the case is tried to the court without a jury.³Under our current practice, the appropriate way to challenge the sufficiency of plaintiff's evidence in a case tried to the court is by a motion to dismiss on the ground that plaintiff has failed to establish a prima facie case.State ex rel. Skibinski v. Tadych(1966), 31 Wis.2d 189, 193, 142 N.W.2d 838.

Whether the case is tried to the court alone or to a jury, the defendant may challenge the sufficiency of the evidence at the close of plaintiff's case.There is some dispute, however, as to whether the standards to be applied by the court in ruling on such a challenge, the effect of the ruling, and the scope of appellate review are the same in each case.The dispute has its source in the differing nature of the court's function in the two cases.In a case tried to a jury, the court sits as arbiter of the law and the jury as trier of fact.Where there is no jury, however, the court performs both functions.

A challenge to the sufficiency of the evidence, of course, requires that some quantum determination be made with respect to the facts in the case.Where the case is tried to a jury, the court's ruling is necessarily limited to a determination of whether there is a dispute as to the facts or whether conflicting inferences might be drawn from the facts as presented.In this respect, a motion for nonsuit is equivalent to a motion for directed verdict.The court may grant neither unless it finds, as a matter of law, that no jury could disagree on the proper facts or the inferences to be drawn therefrom; and that there is no credible evidence to support a verdict for the plaintiff.This approach is necessary to preserve the litigant's right to a jury trial.

Where there is no right to a jury trial, or where that right has been waived, however, the court itself is the ultimate finder of fact.In such a case there appears to be no good reason to view the evidence in the light most favorable to the plaintiff or to seek inferences from the facts which, under some view, might support plaintiff's claim.The plaintiff has the burden, in most cases, to present facts which will support his claim to relief.When he has rested it is to be presumed that all evidence favorable to that claim has been presented.Theoretically, his case will never be stronger than at that point.As a result, a ruling granting the motion to dismiss should constitute a disposition of the case on its merits.The findings of a trial court sitting without a jury will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence.⁴This court need not, on such an appeal, view the evidence in the light most favorable to plaintiff or draw inferences therefrom which might, under some view, support his claim.

This position has been adopted by the federal courts.⁵This appears to be the most reasonable approach to the problem.Unfortunately, a contrary approach, at least in part, appears to be indicated by previous decisions of this court and by the Rules of Civil Procedure which become effective January 1, 1976.⁶

In Newton v. Newton, supra, a contested divorce case, this court indicated that a motion for nonsuit was probably inappropriate in a case tried to the court without a jury.However, the court went on to hold that, in ruling on a motion to dismiss following plaintiff's case, the trial court should consider the evidence in the light most favorable to plaintiff, drawing all inferences therefrom which would support a finding that the statutory prerequisites to divorce had been met.The court reversed the trial court's order dismissing plaintiff's petition, concluding that the trial court'did not construe the plaintiff's evidence in the light most favorable to the plaintiff and did not give him the benefit of the favorable inferences that would be drawn from the credible evidence.'The court in Newton did not directly state what test would be applied on appeal from such an order if the trial court had, in fact, properly evaluated the evidence.However, in quoting from Mattson v. Mattson(1931), 204 Wis. 424, 426, 235 N.W. 767, which in turn cited a California decision, the court indicated that in such a casethe trial court's finding would not be overturned on appeal unless unsupported by any rational view of the evidence.Thus, while the trial court must view the evidence most favorably to the plaintiff, this court on appeal will not independently so test the evidence but will determine only whether the trial court's conclusion is supportable by any view of the evidence.

This approach, unfortunately, runs contrary to this court's position in State ex rel. Skibinski v. Tadych, supra.That case was a special proceeding tried to the court to have an election declared void because of certain alleged campaign violations.A motion to dismiss at the end of plaintiff's case was granted on the ground that plaintiff had failed to meet his burden of proof.This court held that there was no difference, with respect to the test to be applied on appeal, between an involuntary nonsuit and a motion to dismiss on the ground that plaintiff failed to establish a prima facie case.In both instances, the court stated, 'we must examine the evidence in the light most favorable to the plaintiff and draw all reasonable inferences in his favor since the dismissal was against him.'In dismissing the complaint, the trial court stated that the question whether plaintiff had met his burden of proof "revolves itself upon one particular point, that is the credibility of witnesses."This court affirmed the dismissal, but only after considering all the evidence as credible.The court's approach appears to be contrary to the general rule that credibility of witnesses is a question to be determined by the trier of fact, in this casethe court itself.See: Ernst v. Greenwald(1967), 35 Wis.2d 763, 151 N.W.2d 706;Acme Equipment Corp. v. Montgomery Cooperative Creamery Asso.(1966), 29 Wis.2d 355, 138 N.W.2d 729.In Newton, this court indicated that the trial court's view of the evidence must be favorable to plaintiff'unless the evidence is inherently or demonstrably incredible.'

The confusion is not cleared up by the new Rules of Civil Procedure.The involuntary nonsuit is abolished by the provisions of sec. 805.14(2), Stats.⁷Under that rule, a motion for involuntary nonsuit is to be treated as a motion to dismiss.Sub.(3) allows a defendant to move for dismissal on the ground of insufficiency of the evidence at the conclusion of plaintiff's case.However, sub. (1) provides, in pertinent part:

'Test of sufficiency of evidence.No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, . . . shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.'

As adopted by this court, the rule draws no apparent distinction in application between a trial to the court and one before a jury.Indeed, standing alone, the cited section appears to be equally applicable to both types of case.However, when the language of the rule as first proposed is compared with its final form, a basis appears for an argument that the test stated in sub. (1) is intended to be applied only in jury cases.The proposed rule read '(1) Test of sufficiency of evidence.No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, an answer in a verdict, or a finding of fact in a case tried without a jury, . . .'(Emphasis supplied.)

The deletion of the emphasized language can be...