Klinzing v. Huck

• Decision Date: 09 January 1970
• Docket Number: No. 30,30
• Citation: 173 N.W.2d 159,45 Wis.2d 458
• Parties: Lavern A. KLINZING, as Admr. of the Estate of Lawrence J. Hammang, decd., Appellant, v. Richard HUCK et al., Respondents.
• Court: Wisconsin Supreme Court

Page 159

173 N.W.2d 159

45 Wis.2d 458

Lavern A. KLINZING, as Admr. of the Estate of Lawrence J Hammang, decd., Appellant, v. Richard HUCK et al., Respondents.

No. 30.

Supreme Court of Wisconsin.

Jan. 9, 1970.

The action arises out of an automobile accident which occurred at approximately 12:30 a.m. on November 11, 1962, on Highway 23, about one and one-half miles east of the city limits of Fond du Lac, Wisconsin. The plaintiff's decedent, Lawrence J. Hammang (hereinafter referred to as Hammang) was driving his 1962 Volkswagen in a westerly direction in the north lane of Highway 23. His wife, Donna (now Mrs. Sommemeyer), was riding in the right front seat of the Volkswagen.

The defendant, Richard Huck, was driving his father's 1962 Buick sedan in an easterly direction in the southerly lane of Highway 23.

This highway is a two lane, cement road approximately 22 feet wide, with a gravel shoulder on either side and a posted speed limit of 55 miles per hour.

As Hammang was negotiating a left turn from the west-bound lane, across the east-bound lane into the driveway of the Silver Moon tavern, his Volkswagen was struck on the right side by the Buick driven by Huck. As a result of this accident, Hammang died at about 1:15 a.m. on November 11, 1962.

On the night of the accident the weather was clear and the pavement was dry. The highway was straight and level at the point of collision and for a distance of about one-half mile in either direction from this point. Both cars had their headlights on at the time of the collision and the point of collision was generally well lighted from the yard lights of the tavern.

Just prior to the collision, Huck had passed another vehicle, driven by Reuben Hawkins, and had returned to his proper lane of travel.

The plaintiff Klinzing, as administrator of the estate of Hammang, brought this action against Huck and his father's insurer. Trial was had to a jury which returned a general verdict finding both Hammang and Huck causally negligent and apportioned the negligence as 70 percent to Hammang and 30 percent to Huck. Plaintiff's motions after verdict were denied. Plaintiff appeals.

Whyte, Hirschboeck, Minahan, Harding & Harland, S. C., Milwaukee, for appellant; Edward D. Cleveland and Michael T. Hart, Milwaukee, of counsel.

John P. McGalloway, Sr., and William D. McGalloway, Fond du Lac, for respondents.

WILKIE, Justice.

The first issue raised on this appeal is whether the trial court erred in refusing to give an instruction based on the presumption of due care given to the deceased Hammang, or put another way, the issue is whether there is credible evidence of Hammang's negligence so as to remove that presumption from this case.

The appellant here, as in Moose v. Milwaukee Mut. Insurance Co., ¹ argues that an instruction of due care accorded to a deceased party should have been given.

In that case, this court said:

'This presumption is a limited one which is not evidence, and is sufficient only to place upon the other party the risk incidental to a failure to come forward with such testimony as may be in his control. It involves no rule as to the weight of evidence necessary to meet it. When evidence is introduced which would support a jury finding contrary to the presumption, the presumption is eliminated and drops out of the case entirely and no instruction to the jury should be given upon the subject. * * *

'* * *

'The appellant contends that the presumption that a deceased exercised due care for his own safety presumes due care as to each possible element of negligence, i.e., speed, lookout, management and control; and that the trial court should give the instruction as to those elements which have not been rebutted.

'We are of the opinion that the foregoing would constitute an improper application of the rule. The 'exercise of due care for one's own safety' is an entity in itself and is rebutted by any negligence of the deceased. A person is not exercising due care for his own safety if he is negligent in any respect. * * *' (Citations omitted.) ²

Thus, in order for this court to determine whether an instruction based on this presumption should have been given in the instant case, it is necessary to review the record to see if there is any evidence of Hammang's negligence which would rebut this presumption.

What then are the particular facts surrounding this accident?

On the night of the accident the Hammangs, who lived east of Fond du Lac, took their fifteen-year-old son to a teenage dance in the city. Then they went to the annual 'Feather Party' held at the Elks Club in Fond du Lac, arriving there shortly after 7 p.m. They had to wait for another couple who were going to meet them for dinner. While waiting, both Mr. and Mrs. Hammang had two or three martinis and during dinner the two couples consumed a bottle of wine. After dinner and for the remainder of the evening, the Hammangs played bingo. At about 11:45 p.m. they stopped playing bingo and went to the bar of the Elks Club to wait for their son who was to meet them there after the dance. During this wait Hammang had a highball. When their son arrived, they left for home.

A waitress at the Elks Club testified that she spoke to Hammang before he left and he did not show any indication of being under the influence of intoxicating liquor. Both Hammang's wife and son also testified that he walked, talked and drove in a normal manner and showed no signs of intoxication.

After leaving the Elks Club, the Hammangs drove their son home. On the way they passed the Silver Moon tavern and, according to the deceased's wife, they remembered they had not pur 25 cents into the football pool held at the tavern. However, they didn't stop at this time because their son wanted to get home to watch a television program. They drove the son home and immediately turned around and headed back to the Silver Moon in a westerly direction.

Hammang was negotiating a left turn into the driveway of the Silver Moon when his car was struck on the right side by the car driven by the defendant coming from the west. Hammang died shortly thereafter from the injuries he received.

Hammang's wife testified that prior to the collision she could not remember seeing Huck's car. She also testified that she did not know if her husband had turned on his turn signals prior to making the left turn but thought he had 'because he always did.'

Huck was called adversely and testified that at the time of the accident he was eighteen years old and was driving his father's new 1962 Buick with power brakes and steering. He was headed east on his way home to Taycheedah after being at a party. He had had about five beers to drink during the course of the evening. Huck also testified that he had not passed any cars prior to the collision and that he was traveling at a speed of approximately 45 to 50 miles per hour.

Huck testified that when he first saw the Hammang car it had already crossed the center line and was in a fairly sharp left turn. Huck immediately applied his brakes and left skid marks of approximately 152 feet and proceeded 50 feet further east after the impact. He made no attempt to turn either left or right because, according to him, there were two cars in the Hammang lane proceeding west a short distance in front of the Volkswagen and there was another car a short distance behind the Hammang car. Huck was not asked, nor did he testify to seeing Hammang's turn signals flashing.

Two witnesses who were in a car traveling a short distance behind the Huck car contradicted this testimony in several material respects.

Both Reuben Hawkins, the driver of the following car, and John Jetzer, the front seat passenger, testified on behalf of the plaintiff.

Jetzer testified that just prior to the accident, the Huck car passed the Hawkin's car at a high rate of speed and as it returned to the proper lane of traffic it weaved somewhat. Jetzer estimated the speed of the Huck car to be approximately 80 miles per hour.

He also testified that the Hammang car was not following two other cars nor was there a car immediately following it. According to Jetzer there were other cars following Hammang but they were well to the rear of the Volkswagen. When asked if he saw turn signals on the Volkswagen he replied: 'I'm not sure. * * * I think I saw an extraneous light, that is other than the headlights, but I'm not sure.'

Reuben Hawkins, the driver of the car following Huck, corroborated most of Jetzer's testimony. He testified that he was approximately one-half mile from the point of the collision when Huck passed him. He estimated Huck's speed at at least 60 miles per hour and accelerating, and observed a swerving motion from Huck's car as it passed. He also testified that he saw no indication of any other cars coming from the east.

Professor A. H. Easton, an expert in accident reconstruction, also testified on behalf of the plaintiff. In response to a hypothetical question, Professor Easton testified that in his opinion, the speed of Huck's car must have been 62 to 70 miles per hour at the time he applied his brakes.

The defense produced no witnesses and after the plaintiff rested, the case was submitted to the jury.

Respondents argue that on the record Hammang's negligence or an inference of negligence relates to his driving after drinking intoxicants and to his left turn into the tavern driveway.

The fact that a person has been drinking intoxicants is not, of itself, sufficient basis for an inference of negligence. ³ Even assuming that Hammang was intoxicated, ⁴ which we cannot do on the record before this court, intoxication alone does not give rise to liability, but only does so when combined with some act of causal negligence. ⁵

This court has said:

'* * * operating a motor vehicle while under the influence of intoxicating liquor does not in itself provide support for a cause of action to one who has been injured in an accident in which...