Kastler v. Tures

• Decision Date: 12 October 1926
• Docket Number: No. 6.,6.
• Citation: 210 N.W. 415,191 Wis. 120
• Parties: KASTLER v. TURES.
• Court: Wisconsin Supreme Court

191 Wis. 120

210 N.W. 415

KASTLER

v.TURES.

No. 6.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by John J. Kastler against George Tures, wherein defendant filed a counterclaim. From a judgment for defendant, plaintiff appeals. Reversed, with directions.--[By Editorial Staff.]J. Allan Simpson, of Racine (Beck, Smalley & Smith, of Racine, of counsel), for appellant.

Alfred L. Drury, of Kenosha, for respondent.

CROWNHART, J.

This was an action for damages resulting from a collision between the defendant's and the plaintiff's automobiles. The defendant denied liability, and counterclaimed for damage to his automobile. The case was tried before a jury, and the jury found that there was want of ordinary care on the part of the defendant in operating his automobile, which was the proximate cause of the collision; that there was no negligence on the part of the plaintiff in regard to locating his truck on the highway, or in maintaining lights, or in giving warning to travelers; and the amount of damage to each machine, about which there is no dispute. Thereafter, on motion, the circuit judge changed the answers in the special verdict, so as to hold the plaintiff guilty of negligence in regard to maintaining lights on his service truck and in regard to giving warning to travelers. Judgment was entered accordingly, and plaintiff appealed.

[1][2] The court, in his memorandum decision, said:

“The only allegation of the complaint regarding negligence is that the defendant operated his automobile ‘in a careless, negligent, and unlawful manner, without regard for the lights and signals of the plaintiff,’ to the plaintiff's damage. A defendant is entitled to be advised by specific allegations in the complaint and by specific findings in a special verdict just what negligence he is charged with and just what negligence is found against him. These requirements have not been met in this case by either complaint or verdict. That the defendant did not ask to have the complaint more definite and certain, or ask for questions in the verdict designed for specific findings as to negligence, does not save the situation.”

Apparently the court did not base the judgment on the grounds mentioned in the memorandum. It is very clear that such position is untenable. The case was tried and submitted without any objection on the part of the defendant as to the form of the complaint or the form of the special verdict. If the complaint had been defective on the grounds stated, it should have been objected to by the defendant by proper motion to make more specific and certain. As no objection was made, if necessary, the court should have directed the complaint to be amended to conform with the proof. If the special verdict was deficient, the court should have supplied the necessary findings, which he did, or the facts will be presumed to have been found in conformity with the judgment of the court. Section 270.28, Stats. We think the verdict was sufficient under the circumstances.

There is no dispute about the negligence of the defendant. The jury found the defendant negligent; the court so found, and the defendant did not appeal, or ask for review on plaintiff's appeal. The sole question before us is whether or not the court was justified in changing the answers in the special verdict to find the plaintiff guilty of negligence which proximately caused the damage.

There is no substantial dispute in the evidence. A party going north on state highway 15, between Kenosha and Racine, ran off the highway into the ditch on the west side. The highway was concrete, 20 feet wide, with a shoulder about 2 feet in width. The car ran into the ditch, leaving the hind wheels on the shoulder. The plaintiff had a service car equipped with a derrick, and came to the relief of the car in the ditch. He came from the north, going south, passed by the car in the ditch, and...