Macherey v. Home Ins. Co.

• Decision Date: 05 April 1994
• Docket Number: No. 92-0485,92-0485
• Citation: 516 N.W.2d 434,184 Wis.2d 1
• Parties: Mark MACHEREY, Plaintiff-Co-Appellant, v. HOME INSURANCE COMPANY, Defendant-Respondent, d Alexander Figueroa, Defendant-Appellant, Wisconsin Health Organization Insurance Corporation, Defendant.
• Court: Wisconsin Court of Appeals

Page 434

516 N.W.2d 434

184 Wis.2d 1

Mark MACHEREY, Plaintiff-Co-Appellant, v. HOME INSURANCE COMPANY, Defendant-Respondent, ^d

Alexander Figueroa, Defendant-Appellant,

Wisconsin Health Organization Insurance Corporation, Defendant.

No. 92-0485.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 3, 1993.

Opinion Released April 5, 1994.

Opinion Filed April 5, 1994.

For the plaintiff-co-appellant the cause was submitted on the briefs of Bode, Gross & Carroll, S.C. with John Theiller Bode and Jeffrey J. Ek, Waukesha.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

Mark Macherey and Alexander Figueroa appeal from a judgment of the trial court granting Home Insurance Company's motion for a directed verdict. We conclude that the trial court erred in granting Home's motion for a directed verdict. We also conclude, however, that the trial court properly granted Home's alternative motion for a new trial, based on the weight of the evidence, pursuant to § 805.15(1), STATS. Further, we conclude that Home waived its challenge to an evidentiary ruling of the trial court concerning the testimony of a police officer. Finally, we affirm the trial court's determination that, based on the facts of the case, the middle burden of proof was the appropriate burden of proof to submit to the jury. ¹

I. FACTUAL BACKGROUND

On the night of October 25, 1989, Alexander Figueroa was driving a car when he collided with Mark Macherey, who was driving a motorcycle. Figueroa then turned his car around and drove back to the scene of the collision and collided again with Macherey who, by this time, was off his motorcycle. Macherey was injured and sued Figueroa, alleging that he was negligent in the operation of his car. Home Insurance Company, Figueroa's auto insurer, cross-claimed for declaratory relief, alleging that Figueroa's actions were intentional and, therefore, excluded from coverage under the policy.

Following a bifurcated trial on the issue of coverage, a jury unanimously concluded that Figueroa's actions were not intentional. The trial court, however, granted Home's motion for a directed verdict, ² reasoning that Figueroa:

... never swerved, braked, or sounded his horn. Where an actor's conduct is substantially certain to result in injury, the existence of such intention may be inferred as a matter of law without regard to the actor's claimed intent. Based on Figueroa's testimony alone, intent to harm should be inferred as a matter of law.

At the trial, witnesses offered substantially different versions of the event. Macherey and Figueroa did not know each other. Macherey remembered little about the events. His versions, related both through his testimony and that of the police who interviewed him shortly after the collisions, suggested that he lost control of his motorcycle and was hit by Figueroa's car, first while he was on the motorcycle, and next after he had fallen off. Figueroa's versions, both in testimony and through police interviews, suggested that he was frightened by Macherey and hit him first when Macherey blocked his way. Figueroa said that when he then made a U-turn and returned to the scene to "see what happened," he panicked, accelerated, and hit Macherey who seemed to stumble out in front of him. Figueroa said, however, that he didn't see Macherey before striking him the second time, or that he saw him "a few seconds--a second maybe before the second impact." Figueroa acknowledged his drinking before the accident, his negligence in the operation of his car, and his bad judgment in leaving the scene after the second collision. He denied, however, any intent to strike Macherey.

Three eye-witnesses offered their versions. Linda Gleesing, testified, in part:

Q: Mrs. Gleesing, you were an eye-witness to the accident and from everything you saw and heard with regard to the accident where the pedestrian was struck by the automobile, do you have any reason to believe that the driver's car intentionally struck Mr. Macherey?

A: No.

Q: You have absolutely no reason?

A: No. ³

Two other witnesses, Richard Stanton, through his deposition, and Steve Clemens, through trial testimony, provided accounts in which they stated their beliefs that, based on their observations of the second collision, Figueroa's conduct was intentional.

II. DIRECTED VERDICT

A jury verdict will be sustained if there is any credible evidence to support it. Where a trial court has set aside a jury's verdict, the standard for appellate review "is 'whether there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings. The evidence is to be viewed in the light most favorable to the verdict.' " Grutzner v. Kruse, 87 Wis.2d 38, 40-41, 273 N.W.2d 373, 375 (Ct.App.1978) (citation omitted). See also Thompson v. Howe, 77 Wis.2d 441, 448, 253 N.W.2d 59, 63 (1977) (The test is whether "there is any credible evidence which under a reasonable view would support a verdict contrary to that which is sought."); Leatherman v. Garza, 39 Wis.2d 378, 387, 159 N.W.2d 18, 22 (1968).

This standard of review applies even when a trial court disagrees with the jury. If there is credible evidence to sustain the verdict, " ' "even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict of this jury must stand." ' " Bergmann v. Insurance Company of North America, 49 Wis.2d 85, 88, 181 N.W.2d 348, 350 (1970) (citation omitted). Only in the rare case, where the facts are undisputed and the required verdict is absolutely clear, should the trial court reverse the jury's conclusion. Millonig v. Bakken, 112 Wis.2d 445, 450-51, 334 N.W.2d 80, 83-84 (1983). When, on the other hand, more than one reasonable inference may be drawn from the evidence at trial, this court must accept the inference drawn by the jury. Heideman v. American Family Ins. Group, 163 Wis.2d 847, 863, 473 N.W.2d 14, 21 (Ct.App.1991). Further, it is not for this court to weigh the credibility of the witnesses or to search the record on appeal for evidence to sustain a verdict that the jury could have reached, but did not. Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984).

Application of this standard exposes the trial court's error. The trial court stated:

Where an actor's conduct is substantially certain to result in injury, the existence of such intention may be inferred as a matter of law without regard to the actor's claimed intent.... Based on Figueroa's testimony alone, intent to harm should be inferred as a matter of law.

Figueroa, however, denied intent. Although the jury was free to reject his denial and conclude, as the trial court did, that his actions established his intent, the jury was not required to do so. Although such intention "may be inferred" by the jury, such intention remains a factual issue for the jury's assessment based on the evidence.

The sole issue for the jury's determination, as submitted in the special verdict, was: "At and immediately prior to the second (east bound) collision on Clifford Avenue on October 25, 1989, did Alexander Figueroa intend bodily injury to Mark Macherey?" The jury was instructed that " 'intentionally', ... extends not only to those consequences which are desired or intended but also to those which the actor believes are substantially certain to follow from what he does." If Figueroa did not see Macherey until a second before striking him the second time, the fact that he "never swerved, braked or sounded his horn" would have no bearing on whether Figueroa believed that such negligent driving was substantially certain to cause injury to Macherey.

The jury was further instructed, "The intent to injure may be inferred by the nature of the act...." The significant word, of course, is "may" and, contrary to what the trial court concluded, there is nothing in the evidence to suggest that the jury ignored that instruction. Although the trial court believed the jury "should" infer Figueroa's intent, and although on review we see that the evidence established that the jury "could" have inferred such intent, it was within the jury's province to evaluate the credibility of witnesses and weigh the evidence to reach its own conclusion. The testimony of Macherey, Figueroa, the police, and Gleesing support the jury's verdict.

"A court may infer intent to injure as a matter of law only in narrow circumstances." Loveridge v. Chartier, 161 Wis.2d 150, 170, 468 N.W.2d 146, 151 (1991). See also K.A.G. v. Stanford, 148 Wis.2d 158, 163, 434 N.W.2d 790, 792 (Ct.App.1988). Before drawing that inference, the court must find that the conduct was intentional and was substantially certain to cause injury. Id. Here, although Figueroa's conduct might have been intentional, the evidence was mixed. Viewed in the manner most favorable to the verdict, the evidence certainly did not establish that Figueroa's action "must" have been intentional. In fact, the evidence on which the trial court relied for its decision just as reasonably supports the jury's verdict. The trial court said that because Figueroa "never swerved, braked or sounded his horn," intent should be inferred. These very facts, however, also support Figueroa's version that he never saw Macherey until the last second. ⁴

Home, citing Rogers v. Brown, 143 Wis. 472, 476, 128 N.W. 64, 66 (1910) (citations omitted), argues that this court can only reverse the trial court decision if " 'it clearly appears that it was erroneous' " because the trial court had the benefit of seeing the witnesses and evaluating their credibility. At this juncture in the analysis, however, that standard does not displace the rule that it is error to change the jury's answer if any credible evidence supports it. Here, the trial court did not conclude that Figueroa was incredible in stating that he did not intend to strike Macherey. Rather, the trial court concluded that...