Hupf v. State Farm Mut. Ins. Co.
| Decision Date | 10 January 1961 |
| Citation | 12 Wis.2d 176,107 N.W.2d 185 |
| Parties | Richard HUPF, Respondent, v. STATE FARM MUTUAL INS. CO., a foreign insurance corporation, et al., Appellants. (Two notices of appeal.) |
| Court | Wisconsin Supreme Court |
O'Melia & Kaye, Rhinelander, for appellants.
Smith, Puchner, Tinkham & Smith, Wausau, John E. Bliss, Wausau, of counsel, for respondent.
The first issue for this court to consider is whether or not there has been an abuse of discretion by the trial court in granting the second extension of time in which to serve the bill of exceptions. Miller v. Belanger, 1957, 275 Wis. 187, 81 N.W.2d 545.
One of the attorneys for the defendants recites in his affidavit of June 8, 1960, the following facts in support of his motion for further time in which to serve the bill of exceptions: That the court reporter informed him on March 11, 1960, that she could not complete the transcript by April 4, 1960; April 4, 1960, being the ninetieth day to settle the bill of exceptions, and that she would require at least an additional sixty days from April 4, 1960. This fact is corroborated by an affidavit of the court reporter. The court granted the defendants' motion and extended the time in which to settle the bill of exceptions to June 3, 1960.
The affidavit further recites that the transcript was delivered to him on May 31 1960, while he was engaged in another trial, which required his presence from Tuesday, May 31, to Wednesday, June 1, 1960, at 4:30 p. m. He further states that at the time he was handed the transcript he was not in possession of his file and that he relied upon the court reporter's statement that the time to settle the bill of exceptions would not expire until June 8 or 9, 1960. This was supported by the affidavit of the court reporter. On June 3, 1960, the affiant mailed a notice of appeal, together with a proposed stipulation to settle the bill of exceptions to the plaintiff's attorney. On June 7, 1960, plaintiff's counsel returned them stating he would not admit service because the time had expired under the original extension. He further states in the affidavit that he seeks a further extension on the ground of excusable neglect.
The plaintiff's attorney, in his affidavit opposing the second extension of time to settle the bill of exceptions, states that the notice of entry of judgment was served on January 5, 1960, that the transcript of the record was ordered on February 9, 1960, that the first extension of time to serve the proposed bill of exceptions was extended to June 3, 1960, and that the attorney for the defendants received the transcript on May 31, 1960; that the attorney for the defendants was in his office June 2 and 3, because he had personally telephoned him on other matters on both of these days, and that notice of appeal and undertaking was not received by the affiant until June 6, 1960. This was three days after the extended time for serving the bill of exceptions had expired. He further states that June 3 was on a Friday, the expiration date; June 4 and 5 was Saturday and Sunday and June 6 was on a Monday.
The trial court under date of June 9, 1960, extended the time to settle the bill of exceptions to June 30, 1960.
Sec. 269.45(2), Stats., provides:
'After the expiration of the specified period or as extended by any previous order, the court may in its discretion, for like cause, upon notice, extend the time where the failure to act was the result of excusable neglect; * * *' (Italics added).
The power conferred upon a trial court by sec. 269.45(2), Stats., extending time, being highly discretionary, this court will not disturb its determination except in such cases where it clearly appears that it has been abused.
The delay in ordering the transcript was something in excess of thirty days. Notice of entry of judgment was served on the defendants on the 5th day of January, 1960, the transcript was ordered by the defendants' counsel on February 9, 1960, about thirty-four days later. The trial court stated:
'It may be said that counsel had no right to rely upon the statement of the court reporter at that time, that is on May 31st, but it must be noted that counsel was in the trial of an important case at that time and that his own files and records were not available to him, and that inadvertently and excusably he relied upon the statement of the reporter who should know the facts of the situation.
Upon the facts in this case we find no abuse of discretion on the part of the trial court in granting the second extension.
The next issue raised upon this appeal is whether the trial court committed judicial error in changing the answers of the jury in the special verdict.
The verdict returned reads as follows:
'Question Answer Jurors
Dissenting
-------------------------------------------------------------------------------
1. At the time of or immediately before the collision
in question, was Noah Madenwaldt, in his manner of
operating his automobile, negligent in respect
to,----
(a) Lookout? Yes
(b) A signal indicating his intention to make a left No
turn
(c) Making a left turn? No Alvin
Brockmeyer
2. If you answer 'Yes' to any of the subdivisions of
the first question, then answer the corresponding
inquiries here following: Was such negligence as you
find a cause of the collision in respect to,----
(a) Lookout? Yes
(b) A signal indicating his intention to make a left ________
turn
(c) Making a left turn? ________
3. At the time of or immediately before the collision
in question, was Richard Hupf, in his manner of
operating his automobile, negligent in respect
to,----
(a) Control and management? Yes
(b) Position of his automobile on the highway? No Charles Toth
Ted Berch
4. If you answer 'Yes' to any of the subdivisions of
the third question, then answer the corresponding
inquiries here following: Was such negligence as you
find a cause of the collision in respect to,----
(a) Control and management? Yes
(b) Position of his automobile on the highway? ________
5. If by your answers to the foregoing questions you
find that both Noah Madenwaldt and Richard Hupf were
negligent, and that the negligence of each was a
cause of the collision, then answer this question
What proportion of all of the negligence that
contributed to produce the collision is attributable
to,----
(a) Noah Madenwaldt? 20 per
cent
(b) Richard Hupf? 80 per
cent
The following questions as to damages must be answered
by the jury regardless of how the first five
questions have been answered:
6. At what sum do you assess the damages of Richard
Hupf, for,----
(a) Medical and hospital expense?
(Answered by the court upon agreement of parties) 1,247.84
(b) Loss of wages? 2,009.00
(c) Pain, suffering and disability 10,001.-
00
7. At what sum do you assess the damages of Noah
Madenwaldt for,----
(a) Medical and hospital expense?
(Answered by the court upon agreement of parties) 2,738.12
(b) Loss of wages? 7,125.00
(c) Pain, suffering and disability? 20,000.-
00
8. At what sum do you assess the damages of Noah
Madenwaldt by reason of the death of his wife, Deliz
Madenwaldt, for----
(a) Funeral expense of his wife? (Answered by the 900.00
court upon agreement of parties)
(b) Loss of society and companionship? 5,000.00
(c) Pecuniary loss? 10,000.-
00'
The usual motions after verdict were made and the trial court denied defendants' motions and granted the plaintiff's motion in which the court changed the answer to question 3(a) of the special verdict from 'Yes' to 'No,' and struck the jury's answer to question 4(a) and the jury's answers to question 5(a) and (b), as a matter of law on the ground that the finding of negligence as against the plaintiff Hupf as to control of his automobile is wholly without support in the testimony, and that the undisputed testimony as to the defendant Madenwaldt as to sufficient lookout makes the...
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