Luedtke v. Shedivy
| Decision Date | 04 May 1971 |
| Docket Number | No. 250,250 |
| Parties | Mary A. LUEDTKE, Appellant, v. Stephen J. SHEDIVY et al., Respondents. |
| Court | Wisconsin Supreme Court |
Action to recover damages for the wrongful death of Donald L. Luedtke. The action was brought by Mary Luedtke, surviving spouse of the deceased, in her own name, against defendants Stephen J. Shedivy and State Farm Mutual Automobile Insurance Company.
Donald Luedtke was killed in an automobile accident on August 30, 1967. The accident occurred on State Highway 52 in Marathon county, just outside of the city of Wausau. Highway 52 runs east and west. Point of impact occurred in the westbound lane of Highway 52, almost directly across from the Town and Country Tavern, which is located on the south side of Highway 52. To the east of the accident scene, Highway 52 is straight, with a slight upgrade for about three or four blocks. From that point, the road curves toward the north. Shedivy and his girl friend (now wife) Nancy were coming from the east and were traveling in the westbound lane at about 40 to 45 miles per hour. The car of the deceased Donald Luedtke (hereinafter Luedtke) was located crosswise in the highway, almost perpendicular to the tavern. Most of the Luedtke car was in the westbound lane with about four feet of the front end extending over the center line and into the eastbound lane. The left front of the Shedivy car struck the left rear of the Luedtke car. Shedivy testified that he hit his brakes and veered to the right as soon as he saw Luedtke's car, but he was unable to avoid the collision. Both he and his wife testified that Luedtke's car, which was dark in color, was parked crosswise in the road with neither its taillights nor headlights lighted.
Shedivy also testified that the accident happened very quickly from the time he saw the Luedtke car until the impact. There were 48 feet of skid marks from the Shedivy car before impact and 108 feet of skid marks after impact. The Shedivy car ended up facing in a westerly direction, partially in the westbound lane of travel and partially on the north shoulder and 108 feet from the point of impact. The Luedtke car was about 50 feet into the tavern parking lot from the point of impact and facing in a southwesterly direction.
There was no traffic proceeding in either direction upon the highway at the time of the accident, with the exception of an unidentified eastbound vehicle which met and passed the Shedivy car three blocks east of the accident scene.
The deceased was dead on arrival at a local hospital. The county coroner took a blood sample from the deceased which he sent to the division of motor vehicles in Madison. The results of the test were introduced, over objection, at trial, and they revealed that the deceased's blood contained .28 percent by weight of alcohol at the time of his death. The results of this test were corroborated by the testimony of Leonard Brzesinski, one of the deceased's co-workers. He related that a party was held on the evening in question for another of the deceased's co-workers at the General Telephone Company's garage. Brzesinski stated that Luedtke arrived at the garage, having just finished work for the day at about 7 p.m. They drank beer there until 9:30 p.m., when he and Luedtke went to a tavern and continued drinking until about 11 p.m.
Shedivy had also been drinking prior to the accident. However, his testimony was that he had had from two to three 8-ounce glasses of beer. This was supported by a police officer who talked to Shedivy at the scene and stated that he did not appear to be under the influence of alcohol.
With reference to whether the headlights on Luedtke's car were on at the time of the accident, the testimony of the Shedivys (that they were not on) was corroborated by Dorothy Hutchinson who was a patron in the tavern when the accident occurred. She stated that she ran outside after hearing the crash. She looked in the Luedtke car and noted that, although the ignition switch was on, the headlights were not. Yet, she stated, when a tow truck operator turned the lights on a few minutes later, they worked perfectly and continued to work as the car was towed away.
Trial was held, and the jury found that Shedivy and Luedtke were causally negligent. The jury apportioned 15 percent of the negligence to Shedivy and 85 percent of the negligence to Luedtke.
On undisputed proof, the court found $1,133 for funeral expenses. The jury awarded $18,000 for pecuniary loss and $5,600 for loss of society and companionship.
The trial court denied plaintiff's motions after verdict and granted defendants' motion for judgment on the verdict.
From this judgment, plaintiff, Mary A. Luedtke, appeals.
Further facts will be stated in the opinion.
Kelley, Weber & Bolte, Richard J. Weber, Wausau, for appellant.
Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for respondents; Roger Rouse and W. Thomas Terwilliger, Wausau, of counsel.
The following issues are presented on this appeal: (1) Were the results of the blood test properly admitted; (2) was the emergency instruction proper; (3) was the stopping, parking and leaving a vehicle on a highway instruction proper; and (4) was the award of damages so grossly inadequate as to be the result of passion, prejudice and perversity?
Admissibility of Blood Test.
The appellant argues that results of a test showing the alcohol content of the deceased's blood should not have been admitted into evidence at the trial. She contends that such admission is barred by sec. 979.20, Stats. 1
Sec. 979.20(1), Stats., states that all persons learning of a death which occurred under the following circumstances must report it to the coroner or other specified authorities. The 'following circumstances' referred to above provide in part:
'(f) All deaths following accidents, whether the injury is or is not the primary cause of death.'
Sec. 979.20(2), Stats., provides a penalty for failure to comply with the section, and finally, sec. 979.20(3) provides:
(Emphasis supplied.)
The respondents argue that sec. 979.20, Stats., is not applicable here; and they contend that the blood sample was drawn pursuant to sec. 346.71(2), Stats., and that it was admissible under sec. 885.235.
Sec. 346.71(2), Stats., provides in part as follows:
Sec. 885.235(1), Stats., provides as follows:
'(1) In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant when operating or driving a motor vehicle, or while handling a firearm, evidence of the amount of alcohol in such person's blood at the time in question as shown by chemical analysis of a sample of his breath, blood or urine is admissible on the issue of whether he was under the influence of an intoxicant if such sample was taken within 2 hours after the event to be proved. Such chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:
'(a) The fact that the analysis shows that there was five-hundredths of one per cent or less by weight of alcohol in the person's blood is prima facie evidence that he was not under the influence of an intoxicant;
'(b) The fact that the analysis shows that there was more than five-hundredths but less than fifteen-hundredths of one per cent by weight of alcohol in the person's blood is relevant evidence on the issue of intoxication but is not to be given any prima facie effect;
'(c) The fact that the analysis shows that there was fifteen-hundredths of one per cent or more by weight of alcohol in the person's blood is prima facie evidence that he was under the influence of an intoxicant, but shall not, without corroborating physical evidence thereof, be sufficient upon which to find the person guilty of being under the influence of intoxicants.'
With the above statutes in mind, we turn to the question of which provision governs the admissibility of the blood sample test results in this case.
Sec. 979.20(3), Stats., provides that the coroner may take blood samples which will assist him in 'determining the cause of death.' In this case, the coroner testified that he had already determined the cause of death prior to taking the blood sample. Therefore, the sample was not taken for the purpose authorized in sec. 979.20(3). In addition, sec. 979.20 makes no mention of sending the sample to the division of motor vehicles, but that is what the coroner did with it in this case. These facts clearly indicate that the sample was taken pursuant to sec. 346.71(2), not sec. 979.20, Stats.
Sec. 346.71(2), Stats., specifically provides for a sample to be taken when the deceased was...
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