Maryland Cas. Co. v. Pennsylvania Nat. Mut. Cas. Ins. Co., 75-509

• Decision Date: 13 December 1977
• Docket Number: No. 75-509,75-509
• Citation: 260 N.W.2d 380,81 Wis.2d 248
• Parties: MARYLAND CASUALTY COMPANY, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Respondent.
• Court: Wisconsin Supreme Court

Page 380

260 N.W.2d 380

81 Wis.2d 248

MARYLAND CASUALTY COMPANY, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Respondent.

No. 75-509.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 2, 1977.

Decided Dec. 13, 1977.

Action commenced by Maryland Casualty Company (Maryland) as subrogee of its insured against Pennsylvania National Mutual Insurance Company (Penn National), Lussky, White & Coolidge, Inc. (Lussky), and Lussky's general liability insurer.

On November 14, 1971, at approximately 10:00 a.m., a fire was discovered in a room at the Skyway Motel in Prairie du Chien. The room was occupied by Charles M. Hall, a salesman from Kansas City, Missouri, who was employed by Lussky. Hall died in the fire.

Maryland, which insured the motel owners against loss by fire, paid the owners for the property damage and then brought suit against Hall's employer, the employer's general liability insurer and Hall's homeowner's and general liability insurer, Penn National, alleging that Hall's negligent use of smoking materials in his motel room was the cause of the fire.

The case was tried to the jury, which returned a verdict in favor of the plaintiff. The defendants made the following alternative post-verdict motions: (1) for judgment notwithstanding the verdict; (2) to change the negligence, causation and scope of employment answers in the special verdict from "Yes" to "No" and for judgment on the verdict as changed; and (3) for a new trial. In making these motions, the defendants contended (a) that the evidence was not sufficient to sustain the jury's finding that the fire was caused by Hall's negligent use of smoking materials; (b) the court erred in giving a res ipsa loquitur instruction; (c) a policy exclusion relieved Penn National of liability; and (d) as a matter of law, Hall was not acting within the scope of his employment at the time and place of the fire.

The trial court concluded that the plaintiff had failed "to produce sufficient probative evidence to form the basis for a reasonable finding as to the actual cause of the fire." For this reason, the trial court granted the defendants' motion for judgment notwithstanding the verdict. The trial court also concluded that Penn National was not exempt from liability as a matter of law, but that at the time and place of the fire, Hall was not within the scope of his employment. Only the plaintiff has appealed the judgment, and Penn National makes no argument in its brief concerning the latter findings of the trial court.

Additional facts will be stated in the opinion.

Brian E. Butler, and Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief, for appellant.

Ward I. Richter, and Bell, Blake & Metzner, S.C., Madison, on brief, for respondent.

HANLEY, Justice.

The principal issue of this case is whether the trial court erred in granting defendants' motion for judgment notwithstanding the verdict.

Propriety of the Motion for Judgment Notwithstanding the Verdict

The defendants' motion for judgment notwithstanding the verdict was granted by order for judgment dated October 30, 1975. The function of the motion was therefore controlled by that case law preceding the effective date of the new post-verdict motion statute, sec. 805.14(5)(b), Stats., (1975). Sec. 801.01(3), Stats., (1975). The function and proper use of this motion was summarized by this court in Herro v. Dept. of Natural Resources, 67 Wis.2d 407, 413-14, 227 N.W.2d 456, 461-62 (1975), where it stated:

"A motion for judgment notwithstanding the verdict admits for the purposes of the motion that the findings of the verdict are true, but asserts that judgment should be granted the moving party on grounds other than those decided by the jury. Hennington v. Valuch (1965), 27 Wis.2d 130, 133 N.W.2d 824; Shumway v. Milwaukee Athletic Club (1945), 247 Wis. 393, 20 N.W.2d 123; Volland v. McGee (1941), 236 Wis. 358, 294 N.W. 497, 295 N.W. 635. The motion does not raise the issue as to whether there is sufficient evidence to support the verdict and the application may not be granted on the ground that the verdict is against the great weight of the evidence. State v. Escobedo (1969), 44 Wis.2d 85, 90, 91, 170 N.W.2d 709. While not challenging the sufficiency of the evidence to support the facts found in the verdict, it may be used to challenge whether the facts found in the verdict are sufficient to permit recovery. Wozniak v. Local 1111 of UE (1973), 57 Wis.2d 725, 205 N.W.2d 369; State v. Escobedo, supra, 44 Wis.2d page 90, 70 N.W.2d 709. The purpose of the motion is to avoid a new trial and to secure a final judgment in favor of the movant. State v. Escobedo, supra, page 91, 170 N.W.2d 709. It is generally held that judgment notwithstanding the verdict is not the proper remedy where there are defects in the evidence which can be remedied by a new trial. Thus it is said that neither the admissibility of evidence nor its sufficiency may be challenged by the motion. 46 Am.Jur.2d, Judgments, p. 391, sec. 117; 49 C.J.S. Judgments § 60, p. 165." (emphasis supplied).

In the instant case, the jury returned the following verdict:

                "Question #1:  Just prior to the time and place
                               of the fire, was Charles Hall
                               negligent with respect to his own
                               safety
                "Answer:       Yes.  Dissenting (None)
                "Question #2:  If your answer to Question #1
                               is 'Yes', then answer this question
                               Was such negligence on the part
                               of Charles Hall, as you have found
                               in your answer to Question #1, a
                               cause of the loss sustained in the
                               fire
                "Answer:       Yes.  Dissenting (None)
                "Question #3:  If you have answered Question #2
                               'Yes', then Answer this question:
                               At the time and place of the fire
                               was the Skyway Motel negligent?
                "Answer:       No. Dissenting (None).
                ". . .
                "Question #6:  If you have answered Question #2
                               'Yes', then answer this question:
                               At the time and palce of the fire,
                               was Charles Hall acting within the
                               scope of his employment as a
                               salesman for his employer, Lussky,
                               White & Coolidge, Inc.?
                "Answer:       Yes.  Dissenting (None)."
                

Assuming for the purposes of this motion that the above findings of the jury are true, the principal question on this appeal is whether there are other grounds or facts which entitle the defendant to judgment notwithstanding the verdict.

In its decision on the defendants' post-verdict motions, the trial court concluded that Maryland had failed to meet the requisite burden of proving to a reasonable certainty by a fair preponderance of the evidence the fact that the fire originated from smoking materials the only origin of the fire for which Penn National would be liable. Therefore, it is necessary to determine whether the evidence, as a whole, was as a matter of law insufficient to constitute a basis for recovery. Wozniak v. Local 1111 of U.E., 57 Wis.2d 725, 733, 205 N.W.2d 369 (1973).

This action was tried to the jury as a res ipsa loquitur case, and the jury was instructed, in part, as follows:

"Now, it is the law in Wisconsin that the mere occurrence of a fire does not give rise to a presumption, or even a permissible inference, of negligence. It is also the law in Wisconsin that a person dying in an occurrence is presumed to have exercised due care for his own safety. This presumption prevails and you must find for the defendants unless you find the plaintiff has established what the conduct of the deceased actually was and the plaintiff has established as a fact that the deceased was negligent just prior to the fire here involved.

"You are further instructed that if you find that Mr. Hall, the deceased, had exclusive control of the instrumentality, whatever that was, which started the fire in question, and if you further find that the fire is of a type or kind that ordinarily would not have occurred had Mr. Hall exercised ordinary care, then you may infer from the occurrence of the fire itself and the surrounding circumstances that there was negligence on the part of Mr. Hall, unless the defendants have offered you an explanation of the fire which is satisfactory to you."

The jury was also given the standard instructions concerning the plaintiff's burden of proof, the credibility of witnesses and the weight to be given the opinions of expert witnesses.

The granting of the res ipsa loquitur instruction was based upon the following facts in evidence. Charles M. Hall was a travelling fabric salesman who was employed by Lussky. His wife testified that he had smoked regularly for 20 years prior to September, 1971, when he first quit. On Saturday, November 13, 1971, Hall took a room at the Skyway Motel. At that time Donald Blake, the motel's clerk, observed that Hall's eyes were puffy, his face was reddish and his clothes disheveled. The witness stated that Hall "was either overly tired or had been drinking."

After checking in, Hall left the motel and went to the Spit and Whistle tavern in Prairie du Chien. He arrived there at about 11:15 p.m. and the tavern's proprietress, Helen Dilley, testified that Hall consumed three "mixed shots." She also testified that Hall smoked filter-tipped cigarettes and, when he finished his last, bought a new pack at a vending machine at the tavern. Hall left the tavern at about 12:30 a.m.

At 10:00 a.m. the next morning, Donald Blake discovered the fire in Hall's room. Seeing smoke coming out from underneath the door and windows, Blake shut off the electrical power to the room and kicked down the door. The door was locked from the inside. Smoke prevented his entry into the room but the local fire department soon arrived and extinguished the fire.

The county coroner, Donald Sime, arrived at the scene within 25 minutes of the fire's discovery. Sime looked through...