Keplin v. Hardware Mut. Cas. Co.
| Decision Date | 30 June 1964 |
| Citation | 129 N.W.2d 321,24 Wis.2d 319 |
| Parties | Nettie KEPLIN, Plaintiff-Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, a Wisconsin corporation, Ripon Motors, Inc., a Wisconsin corporation, and Russell E. Troudt, Defendants-Respondents, and Heritage Mutual Insurance Company, a Wisconsin corporation, William Keplin, and the Milwaukee Automobile Mutual Insurance Company, a Wisconsin corporation, Impleaded Defendants-Respondents. William KEPLIN, Plaintiff-Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, a Wisconsin corporation, Ripon Motors, Inc., a Wisconsin corporation, and Russell E. Troudt, Defendants-Respondents, and Heritage Mutual Insurance Company, a Wisconsin corporation, Impleaded Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Eugene A. Bitters, Ripon, for appellants.
John P. McGalloway, Sr., Edward T. O'Neill, Fond du Lac, for respondents.
The plaintiffs in their briefs raise a total of 44 questions although not all of them are individually argued. We do not propose to discuss all these assignments of error because many of them are duplicitous and may be combined under a broader statement of the issue; others are without merit and some are unsubstantiated by the facts or the facts relied upon are not pointed out to this court in such detail that the assigned error can be properly analyzed and discussed. The record is voluminous and it is not the duty of this court to sift and glean the record in extenso to find facts which will support an assignment of error.
It is contended by the plaintiffs that the removal of the cases from the Ripon municipal court and the consolidation of them with the Troudt cases in the circuit court at Fond du Lac and the resulting delay in scheduling the cases for trial violated plaintiffs' rights guaranteed by the Seventh and Fourteenth Amendments of the United States Constitution. Presumably the plaintiffs mean some other amendment than the Seventh as that amendment is clearly inapplicable. However, the thrust of the plaintiffs' argument is that the legislature provided a court of competent jurisdiction in Ripon to try the plaintiffs' cases and they have a right to that forum. The legislature in addition to providing a competent court in Ripon also provided by sec. 269.59, Stats., that a circuit court may upon notice order any civil action pending in any other court in the same county to be transferred to its court for consolidation for trial when such consolidation for trial would be proper if the actions were originally brought in the circuit court. The exercise of the power granted under this section is discretionary 1 and hence the question presented is whether the circuit court abused its discretion in ordering consolidation. The plaintiffs have pointed out no reason why it was an abuse of discretion for the circuit court to consolidate the cases in its court. These cases all arose out of the same automobile accident. The facts and proof in each case are practically identical. Only two drivers and a passenger are involved. These are not involved or unusual cases excepting for the unduplicable feat of Troudt's car landing on top of the Keplin car after hitting a telephone pole. The consolidation of these cases did not result in any deprivation of the plaintiffs' constitutional rights.
The plaintiffs further argue that the delay in the proceedings prior to the actual trial denied plaintiffs of their right to a speedy trial and gave in part as instances a delay of six days in entering an order of consolidation, several months in selecting a successor judge by Circuit Judge Russell E. Hanson, delays of the successor judge Helmuth Arps in hearing and granting defendants' successive applications for interpleaders and breaches of stipulations to take adverse examinations. We do not find in the record the plaintiff filed an affidavit of prejudice against Judge Hanson so as to require the application of sec. 261.08(1), Stats. This section requires upon the filing of an affidavit of prejudice that the chief justice of this court through the court administrator shall appoint a judge to hear the matter; in no event shall the circuit judge against whom an affidavit of prejudice has been filed appoint a successor judge.
It is true, there was a delay from May 14 until December 12 in 1962 before Judge Arps was appointed, but we do not find any refusal of the circuit court to request an assignment of a successor judge or any repeated requests, nor does the record show Judge Hanson informed counsel for the plaintiff it was not necessary to file an affidavit of prejudice and that he would disqualify himself. This court cannot consider facts outside the record even though stated as such in the briefs. We find no cause for complaint by the plaintiffs of the time consumed in deciding and allowing the interpleaders and in reference to the depositions. It is probably true that this passage of time was frustrating to the plaintiffs but the delay cannot be said to be entirely without their counsel's fault.
The participation of Heritage Mutual Insurance Company in the case is challenged as being improper. Troudt sued the Heritage Mutual to determine a question of coverage on a policy on his own car which was not involved in the accident. The issue was whether Heritage was liable under that policy in the event Troudt was liable to the Keplins. It is argued that after a discovery examination it was apparent that Heritage Mutual Insurance Company was not liable under the terms of its policy regardless of Troudt's liability of the Keplins. After the trial it was stipulated by the various defendants that the Heritage Mutual had no coverage on the vehicle operated by Troudt at the time of the accident and the complaints and cross-complaints against Heritage Mutual should be dismissed.
We do not see how the issue of coverage between two defendants in any manner adversely affected the plaintiffs' recovery against the defendants. It is not the rule that cases can only be consolidated when they involve identical issues between identical parties as claimed by the plaintiffs. All the issues in consolidated cases for trial need not be between the same parties. However if such issues are too diversive so as to be confusing to the case as a whole or the presence of an issue would prejudice a party not involved, the cases should not be consolidated. The issue of coverage was not a ground for refusing to consolidate the cases and consequently not error to allow the parties to remain in the trial until that issue was determined.
The plaintiff complains the conduct, mannerisms, intonations, and remarks of the trial judge created an appearance of bias against the plaintiffs to the point that a fair trial was not had. It is true the trial judge may unintentionally deprive a party of a fair trial by the manner of conducting a case. Swonger v. Celentano (1962), 17 Wis.2d 303, 116 N.W.2d 117. The plaintiffs consider that criticism of their counsel, objections to inadmissibility of evidence, the rejection of requested manner of proceeding, conveyed the idea to the jury the plaintiffs' claim was fantastic and the requested procedure was novel. Plaintiff's counsel seems supersensitive and unduly critical.
We do not consider these complaints to be justified by the record, nor do we consider it error for the trial court to refuse to give general preliminary instructions to the jury prior to the admission of evidence. Recently, the bench and bar have discussed the proposal of trial courts giving general instructions to the jury at the opening of trial at least to the extent of advising the jury of its role and function in the trial. As yet no statute or rule of court requires instructions to be so given and it is not error for failing to do so even though we might agree the procedure had merit. We have examined the pages of the record cited as illustrative of impatience and boredom by the court with the plaintiffs' evidence and fail to find any such impatience or boredom, much less error. While a trial judge should conduct a trial free from prejudicial error, there is no requirement he enjoy it.
Complaint is made the testimony of Officer Sauer concerning statements made to him by the plaintiff within 72 hours of the accident were inadmissible under sec. 325.28(1), Stats. Such statements made to a law officer in the ordinary course of his duties of investigating an accident and who had no interest in the outcome of any lawsuit have 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 43, 47 and 46 properly identified as to position of the camera, distance from the object photographed, and direction in which the camera was pointed, but such rule did not affect the admissibility of the exhibits. Such information concerning the exhibits was required by the rules of practice of this court on appeal. Sec. 251.251(10), Stats.1961. We fail to see how the disposition of this matter by the court amounts to reversible error. We point out, however, a new rule on identification of photographs was created, effective September 1, 1963, and now requires such information at the time of the receipt of the exhibits in evidence unless such information is deemed to be impracticable by the trial judge. Sec. 270.202, Stats.
Various objections are made that intonations, expressions of surprise and disbelief on the part of the trial judge to what were normal trial procedures by the plaintiffs reflected his bias and prevented the plaintiffs from having a fair trial. We cannot agree with the interpretations placed upon the trial court's conduct by the plaintiffs. We have read the record of the incidents cited, and...
To continue reading
Request your trial
-
Ellis v. Wyoming Dep't of Family Servs. (In re Termination of Parental Rights to LDB)
...and the children are several plaintiffs but one party and would therefore share peremptory challenges. Cf. Keplin v. Hardware Mut. Cas. Co., 24 Wis.2d 319, 329-330, 129 N.W.2d 321, 130 N.W.2d 3, reh'g denied, 24 Wis.2d 319, 130 N.W.2d 3 (1964).In re C.E.W., 368 N.W.2d 47, 57 (Wis. 1985).4[¶......
-
Fire Ins. Exchange v. Basten
...upheld an insurer's utilization of a declaratory judgment action to determine a coverage issue under a liability policy. The insurer in the Hardware case, not named in the underlying personal injury action, received a tender of defense from its insured, the city of Stevens Point. Hardware M......
-
State v. Brereton
...flee in vehicle and police had probable cause to believe contraband would be found in the vehicle). 18.See Keplin v. Hardware Mut. Cas. Co., 24 Wis.2d 319, 331, 129 N.W.2d 321 (1964) (photographs of a car are sufficient to be used as evidence at trial so that actual car does not have to be ......
-
Matter of LDB, S-19-0050
...plaintiffs but one party and would therefore share peremptory challenges. Cf. Keplin v. Hardware Mut. Cas. Co. , 24 Wis.2d 319, 329-330, 129 N.W.2d 321, 130 N.W.2d 3, reh'g denied , 24 Wis.2d 319, 130 N.W.2d 3 (1964). In re C.E.W. , 124 Wis.2d 47, 368 N.W.2d 47, 57 (1985).4 [454 P.3d 914 [¶......