Krause v. Milwaukee Mut. Ins. Co.

• Decision Date: 25 November 1969
• Docket Number: No. 110,110
• Citation: 44 Wis.2d 590,172 N.W.2d 181
• Parties: Fred J. KRAUSE, Respondent, v. MILWAUKEE MUTUAL INS. CO., a Wis. insurance corp., Appellant.
• Court: Wisconsin Supreme Court

Page 181

172 N.W.2d 181

44 Wis.2d 590

Fred J. KRAUSE, Respondent, v. MILWAUKEE MUTUAL INS. CO., a Wis. insurance corp., Appellant.

No. 110.

Supreme Court of Wisconsin.

Nov. 25, 1969.

The defendant, Milwaukee Mutual Insurance Company, is appealing from a judgment on a verdict following a jury trial in the circuit court for Rock county.

This case arises out of an automobile-truck collision which took place on April 19, 1967, at about 2 p.m. on a clear, bright day. It involved a car owned by Thomas Porter and a semi-freight truck owned by Byrns Oil Co., and driven by the plaintiff Fred Krause, an employee thereof. The occupants of the car were Janice O'Leary, the fiancee of Porter, and her sister Mrs. Delores Arntz. The owner of the car, Porter, was not in the car at the time of the accident.

The collision occurred at the intersection of County Trunk W, which runs east and west, and Highway 140, which runs north and south. Highway 140 is an arterial highway at the intersection where the collision took place, and all traffic on County Trunk W must come to a complete stop before entering Highway 140. At the time of the accident, the car was traveling easterly on County Trunk W; and the semi-tractor and trailer unit, hauling 7,125 gallons of fuel oil and weighing approximately 70,000 lbs., was traveling north on Highway 140. The accident occurred in the southeast quadrant of the intersection, and the front of the semi-tractor struck the rear of the car, with the car then moving toward the northeast. The semi-tractor and trailer came to rest some distance north and east of the intersection. Both occupants of the car were thrown out and killed.

The jury found that at the time of the accident Mrs. Arntz was driving the car and was causally negligent of the injuries sustained by the plaintiff. Plaintiff was found not to be negligent and was awarded $29,091.20, plus costs and disbursements of $831.06.

Defendant, Milwaukee Mutual Insurance Company, was the insurer of the automobile involved in the collision. In addition, defendant had issued a policy of automobile liability insurance to Mr. and Mrs. Arntz which covered Mrs. Arntz at the time of the accident. Defendant's motions after trial were denied and the trial court affirmed the special verdict and ordered judgment on the verdict accordingly. Further facts appear in the opinion.

William L. McCusker, Madison, for appellant.

Aberg, Bell, Blake & Metzner, Madison, for respondent.

CONNOR T. HANSEN, Justice.

A number of issues have been raised on appeal:

(1) Was it error to admit evidence concerning who was driving the insured automobile?

(2) Should certain of the defendant's exhibits have been allowed as evidence?

(3) Was it error to give the emergency instruction?

(4) Was plaintiff negligent as a matter of law?

(5) Is the jury's award of personal damages excessive?

(6) Was it error to award damages for future loss of earning capacity?

I. EVIDENCE AS TO WHO WAS DRIVING.

Defendant claims it was error for the trial court to admit evidence tending to establish Mrs. Arntz was driving the insured car at the time of the accident. Defendant argues such evidence was inadmissible indirect, and any finding made by the jury in this regard was speculative and conjectural.

The trial court permitted Hazel Siebarth, an aunt of Janice O'Leary, to testify that to her knowledge Janice did not have a driver's license. The court allowed Porter, the fiance of Janice, to testify that from 1959 until 1967 (except for a few years that she was previously married), to his knowledge, Janice O'Leary did not have a driver's license. The trial court also admitted plaintiff's Exhibit 15, a certification from the Wisconsin Motor Vehicle Department to the effect that for the four years prior to May 22, 1968, Janice O'Leary did not have a Wisconsin driver's license. All of this evidence was admitted over defendant's objections.

Defendant argues that any evidence concerning a driver's license is inadmissible in that Wisconsin cases have only allowed such evidence to establish the host's lack of experience and a guest's knowledge of it. London & Lancashire Ind. Co. v. Phoenix Ind. Co. (1953), 263 Wis. 171, 56 N.W.2d 777; Held v. Draeger (1951), 260 Wis. 70, 49 N.W.2d 750; Canzoneri v. Heckert (1936), 223 Wis. 25, 269 N.W. 716. However, no Wisconsin case has precluded such evidence for the purpose of identifying who was driving. This case is similar to London & Lancashire Ind. Co. v. Phoenix Ind. Co., supra, 263 Wis. at p. 176, 56 N.W.2d at p. 780, in that the evidence was not admitted to establish any lack of due care.

'Plaintiff contends that it was error to receive evidence of the fact that Miss Bloom had no driver's license and in support of its contention cites a number of cases decided by this court. They are not in point. The evidence of a violation of a statute in all of them was offered upon the theory that the failure to have the license might bear upon the question of the negligence of the violator, and in all of them it was rejected upon the ground that the violation was not shown to have had any causal relation to the accident. The testimony was offered and received in this case not for that purpose, but for the purpose of establishing the fact of the inexperience of the driver and that her guests knew of such lack. If the failure to have a license were the only circumstance proved for the purpose of establishing inexperience it would be insufficient and, if at the time of the offer of proof of that fact the court were aware that there was nothing else, we should have a different question than is presented. There was other evidence, however, as we have pointed out. On the issue of experience, or lack of it, proper inferences are deducible from the fact that she had no license--for instance, that the violator, who should be presumed to have sought to comply with the law, might have been refused a license because of her inexperience, and that her guests should have considered that possibility along with the other facts of which they were aware. * * *'

In like manner, it can be presumed that Janice O'Leary sought to comply with the law ¹ and the jury could have considered that fact when making a determination of whether or not Mrs. Arntz was driving at the time of the accident.

The trial court also allowed into testimony, over objections, the testimony of Goldie Wenger, an aunt, who testified that she had never seen her niece, Janice O'Leary, drive a car, although she did not know if Janice knew how to drive or not. Porter also testified that he had not seen Janice drive, although he did not know whether she could drive or not. Defendant claims such proof is inadmissible to show that at the time of the accident Janice O'Leary was not driving.

Both women lived in Walworth, Wisconsin, and had apparently driven to Beloit and were on their way back to Walworth when the accident occurred. Testimony was admitted over objection which established that on the day of the accident, when the two women left Walworth at about 10 or 10:30 a.m. Mrs Arntz was driving. Defendant argues this evidence is too remote to be of any probative value, and cites a number of cases which have held various observations inapplicable. Rausch v. Buisse (1966), 33 Wis.2d 154, 146 N.W.2d 801 (evidence of skid mark observed six hours after accident); Neumann v. Evans (1956), 272 Wis. 579, 76 N.W.2d 322 (observation of speed 1/4 mile from the accident); Ronning v. State (1924), 184 Wis. 651, 200 N.W. 394 (observation of speed one mile from accident). However, these cases also held that the determination of whether evidence is too remote to be relevant is a matter peculiar to the trial court's discretion. It is settled law that: 'Rejection of evidence because of remoteness rests in the trial court's discretion.' Rausch v. Buisse, supra, 33 Wis.2d at p. 166, 146 N.W.2d at p. 807. See also Neider v. Spoehr (1969), 41 Wis.2d 610, 165 N.W.2d 171. All of the cases cited by defendant reflect this rule in that the trial court's discretion was upheld in ruling on the admissibility of the particular evidence involved. Defendant suggests this court held inadmissible the testimony of a witness in Ronning v. State, supra, as to his observation of speed one mile from the scene of the accident. However, the case holds that the testimony allowed by the trial court was admissible, but that this evidence, along with the rest of the state's case, was insufficient to sustain a criminal conviction.

'The witness Krippner was not in a very advantageous position at the time he made his estimate of an approximate speed of 70 miles per hour. However, we are of the opinion that such evidence, under the authorities above cited, was admissible, but that the same did not create a prima facie case on the subject of speed or a presumption that the speed law was violated at or immediately prior to the accident, but that such testimony merely raised an inference of fact. * * * ' Ronning v. State, supra, 184 Wis. at pp. 657, 658, 200 N.W. at p. 396.

This court has adopted Rule 303 of the Model Code of Evidence:

'* * * We have in the recent cases of Whitty v. State (1967), 34 Wis.2d 278, 149 N.W.2d 557, and in Price v. State (1967), 37 Wis.2d 117, 154 N.W.2d 222, quoted with approval and have adopted the principles of Rule 303 of the Model Code of Evidence.

'* * * Nevertheless, we have by our approval of Rule 303 concluded that, 'The judge may in his discretion exclude evidence if he finds that its probative value is outweighed' by risks incident to its admission.' State v. Hutnik (1968), 39 Wis.2d 754, 763, 159 N.W.2d 733, 737.

Rule 303 of the Model Code of Evidence is as follows:

'(1) The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing...