Ledvina v. Ebert

• Decision Date: 15 April 1941
• Citation: 296 N.W. 110,237 Wis. 358
• Parties: LEDVINA v. EBERT et al. (two cases). FROELICH v. EBERT et al.
• Court: Wisconsin Supreme Court

237 Wis. 358

296 N.W. 110

LEDVINA

v.EBERT et al. (two cases).

FROELICH

v.EBERT et al.

Supreme Court of Wisconsin.

Feb. 4, 1941.

Rehearing Denied April 15, 1941.

Appeal from judgments of the Circuit Court for Brown County; Henry Grass, Judge.

Affirmed in part; reversed in part.

Three actions were brought, respectively, by Katherine Ledvina, Julia Ledvina and Charles Froelich, as administrator of the estate of Joseph Ledvina, deceased, against Urban Ebert, Walter Blieck and the Cheese Makers Mutual Casualty Company, as defendants, to recover damages sustained by the plaintiffs, Katherine and Julia Ledvina, and the deceased Joseph Ledvina, as the result of negligence of Urban Ebert in operating a motor truck which collided with an automobile operated by Charles Ledvina, who was killed in the accident. Ebert was in the employment of Blieck, the owner of the truck, and the Cheese Makers Mutual Casualty Company was his automobile liability insurer. Upon defendants' application, Albert Froelich, administrator of Charles Ledvina's estate, and the Farmers Mutual Automobile Insurance Company, the automobile liability insurance carrier on the automobile which Charles Ledvina was operating, were interpleaded as defendants; and a cross-complaint for contribution was filed against them by the defendants on the ground that the injuries to Katherine, Julia and Joseph Ledvina were caused by Charles Ledvina's negligence in operating the automobile. The defendants also filed an answer denying negligence on the part of Ebert, and the interpleaded defendants denied negligence on the part of Charles Ledvina. The three actions were consolidated for trial, and upon the jury's findings in a special verdict judgments were entered in the actions brought by Katherine and Julia Ledvina, which provided for recovery of their damages from the defendants Ebert, Blieck and his insurer, and also provided for the recovery of contribution by these defendants from the interpleaded defendants Albert Froelich, as administrator, and the Farmers Mutual Automobile Insurance Company. Thereupon the interpleaded defendants appealed from the provision in the judgments in relation to the recovery of contribution from them by the defendants, and these appeals appear on the August, 1940, Calendar as No. 184 in Katherine Ledvina's action, and NO. 185 in Julia Ledvina's action.

In the action brought by Charles Froelich, as administrator, to recover damages sustained by the injury and death of Joseph Ledvina, judgment was entered upon the special verdict which provided for the recovery by plaintiff of damages from the defendants Ebert, Blieck and his insurer, and for the recovery by these defendants of contribution upon their cross-complaint against the administrator of Charles Ledvina's estate; but the judgment provided that their cross-complaint against the interpleaded Farmers Mutual Automobile Insurance Company be dismissed. Ebert, Blieck and his insurer duly appealed from solely this latter provision in the judgment, and their appeal was numbered No. 23 on the August, 1940, Calendar. In that appeal a notice of motion for review under sec. 274.12, Stats., was duly served by the interpleaded defendants. Subsequently, upon the motion of the interpleaded defendant Albert Froelich, as administrator, the court entered an order on April 22, 1940, extending to April 23, 1940, the time for Albert Froelich, administrator, to appeal from the judgment entered in the action on October 23, 1939, and from this order the defendants Ebert et al. took an appeal also, which is No. 186 on the August, 1940, Calendar.

Schubring, Ryan, Petersen & Sutherland, of Madison, for Ledvina and others.

Everson, Ryan and Hanaway, of Green Bay, for Ebert and others.

FRITZ, Justice.

The questions, which are to be determined on these appeals, arise solely because of provisions in the judgments entered in the actions described in the preceding statement, in relation to the recovery or the denial of recovery of contribution to the defendants Ebert, Blieck and his insurer from the interpleaded defendants Albert Froelich, as administrator, and the Farmers Mutual Automobile Insurance Company. The defendants Ebert, Blieck and his insurer neither appealed from nor seek review of the provisions in the judgments which relate to the recovery against them by the plaintiffs Katherine and Julia Ledvina and Charles Froelich, as administrator of the estate of Joseph Ledvina, of the damages for the injuries sustained by Katherine, Julia and Joseph Ledvina, and also for the latter's death as the result of Ebert's negligence in operating a motor truck as an employee of Blieck, to whom the Cheese Makers Mutual Casualty Company had issued an automobile liability insurance policy on the truck. The accident, which resulted in the injuries and death in question, occurred at about 1 P. M. on June 14, 1938, when the motor truck collided with an automobile operated by Charles Ledvina in the intersection of an east and west road, called the Green Bay Road, and County Trunk T, a north and south road. Both had a gravel-surfaced roadway 21 to 22 feet wide. Ebert was driving the motor truck south on County Trunk T. Charles Ledvina was driving westward on the Green Bay Road. His father, Joseph Ledvina, was seated to his right on the front seat and his mother, Katherine, and his sister, Julia Ledvina, sat in the rear seat. The impact occurred at a point four to five feet east of the west edge of the graveled roadway of County Trunk T, and near the middle of the Green Bay Road, when the right part of the front bumper of the truck struck the right part of the rear bumper of Ledvina's automobile. Ebert testified that upon applying his brakes the rear end of the truck skidded to the left and the front swung to the right, and it continued until it tipped over on its right side at a telephone pole, which was at the west line of highway T about 60 feet southwest of the point of collision. The impact caused the rear of the automobile to swing to the south and west and then the automobile rolled over two or three times until it came to a stop facing north and east on the north shoulder of the Green Bay Road, about 140 feet west of the intersection. Charles Ledvina was killed in the accident, and Joseph Ledvina died as the result of injuries sustained therein.

The jury found that Ebert was causally negligent in failing to yield the right of way, driving at an excessive speed, failing to keep a proper lookout, and in the management and operation of the truck; that Charles Ledvina was causally negligent in respect to failing to keep a proper lookout, and in the management and operation of the automobile; but that he was not negligent in respect to driving at an excessive speed, and in failing to yield the right of way to the truck. Upon motions after verdict the court denied the interpleaded defendants' motions to change the jury's findings that Charles Ledvina was causally negligent in respect to lookout and the management and operation of the automobile by substituting therefor findings by the court that he was not negligent in either of these respects. The court entered judgment in each action for the recovery of the plaintiff's damages from the defendants,and provided in the judgment for the latters recovery of contribution from the interpleaded defendants in the actions in which Katherine Ledvina and Julia Ledvina are plaintiffs; and likewise provided in the judgment entered in the action brought by the administrator of the estate of Joseph Ledvina for defendants' recovery of contribution from the interpleaded defendant Albert Froelich, as administrator of Charles Ledvina's estate, but provided also therein that defendants' cross-complaint against the interpleaded defendant Farmers Mutual Automobile Insurance Company be dismissed. Defendants appealed from solely this latter provision in that judgment, and thereupon the interpleaded defendants duly served a motion to review under sec. 274.12, Stats.

[1][2][3][4] On the other hand, in the actions brought by Katherine and Julia Ledvina, resectively, the interpleaded defendants appealed from the portion of the judgments which provided for the payment of contribution to the defendants Ebert, Blieck and his insurer. No review in any other respect is sought in relation to the judgments in those actions. In challenging the provision therein which adjudges the payment of contribution by the interpleaded defendants, contend that the court erred in denying their motion for an order changing the jury's findings that Charles Ledvina was negligent as to lookout and as to management and control, by substituting therefor findings that he was not negligent in those respects and in denying their motion for judgment in their favor on the verdict as changed, on the ground that there was no credible evidence to sustain the jury's findings. In passing upon these contentions it must be noted that there stated as verities the facts established by the findings of the jury which are unchallenged on this appeal that not only was Ebert negligent in his management and operation of the truck, in driving at an excessive speed, in failing to yield the right of way and to keep a proper lookout, but also that there was no negligence on the part of Ledvina in respect to failing to yield the right of way or driving at an excessive speed. In relation to Charles Ledvina's opportunity to observe the approaching truck and the lookout kept by him, the testimony is to the following effect: Because of the topography, buildings, trees and other vegetation in the area to the east and north of the northeast corner of the intersection, and also the hills and depressions along the Green Bay Road, as Ledvina approached from the east, the only places at which Ebert's southbound truck was observable from the driver's seat of the Ledvina automobile were while the truck was traveling between points 750 to 1,100...