McNamer v. American Ins. Co.

• Decision Date: 05 October 1954
• Citation: 66 N.W.2d 342,267 Wis. 494
• Parties: Mildred McNAMER, Administratrix of the Estate of Keith McNamer, Deceased, Plaintiff and Respondent, v. AMERICAN INSURANCE COMPANY, a foreign corporation, Avery James Dempsey and Wonewoc Rendering Works, a Wisconsin corporation, Defendants and Appellants.
• Court: Wisconsin Supreme Court

Page 342

66 N.W.2d 342

267 Wis. 494

Mildred McNAMER, Administratrix of the Estate of Keith

McNamer, Deceased, Plaintiff and Respondent, v. AMERICAN INSURANCE COMPANY, a foreign corporation, Avery

James Dempsey and Wonewoc Rendering Works, a

Wisconsin corporation, Defendants and Appellants.

Supreme Court of Wisconsin.

Oct. 5, 1954.

Rehearing Denied Dec. 7, 1954.

Roberts, Roe, Boardman, Suhr & Bjork, Madison, for appellants.

Donovan, Gleiss, Goodman, Breitenfield & Gleiss, Sparta, Harry T. Jordan, Hillsboro, for respondent.

GEHL, Justice.

There is but one question raised by defendants upon this appeal, that is, is there any credible evidence to support the jury's findings that Dempsey was negligent?

Plaintiff contends that because defendants failed in the trial court to move for a new trial they are not entitled to a review by us of the sufficiency of the evidence to sustain the judgment. This court has not been consistent in its treatment of the question. In Reed v. City of Madison, 85 Wis. 667, 56 N.W. 182, 184, we said:

'The law is that this court cannot properly review the evidence to determine whether it does or does not support the verdict and judgment, unless a motion for a new trial was submitted to the trial court. In the absence of such motion, this court has said: 'The verdict must be taken as sustained by the evidence, and the only questions to be inquired into upon an appeal from the judgment are the errors, if any, arising upon the trial in the admission or rejection of evidence, in the instructions of the court to the jury, or otherwise in the conduct of the trial.' Anstede v. Bentley, 61 Wis. 629, 21 N.W. 807.'

It was so held also in O'Toole v. State, 105 Wis. 18, 80 N.W. 915, and in Ferry v. State, 266 Wis. 508, 63 N.W.2d 741. We said in Strnad v. Co-operative Insurance Mutual, 256 Wis. 261, 40 N.W.2d 552, 558:

'It is well established that on appeal from a judgment the court will not review the sufficiency of the evidence to sustain the judgment unless there has been a motion for a new trial.'

On the other hand it has been held in a number of cases that there may be a review in such case, particularly in a situation such as is presented here, where there has been a denial by the trial court of a motion for a non-suit or a directed verdict. Second National Bank of St. Paul v. Larson, 80 Wis. 469, 50 N.W. 499; McGinn v. French, 107 Wis. 54, 82 N.W. 724; Zahn v. Milwaukee & S. R. Co., 114 Wis. 38, 89 N.W. 889; Lawless v. State, 114 Wis. 189, 89 N.W. 891; Kopplin v. Quade, 145 Wis. 454, 130 N.W. 511. We conclude that the rule to be applied is properly stated in Plankinton v. Gorman, 93 Wis. 560, 67 N.W. 1128, 1129, where the court said:

'A motion for a new trial is only necessary to preserve for review errors committed by the jury. Errors committed by the court are reviewable without such motion. Improperly directing a verdict is such an error, which, if properly excepted to, and preserved in the bill of exceptions, can be reviewed on appeal from the judgment.'

We would add that improperly denying a motion for a directed verdict is also such error. Richter v. Estate of Leiby, 101 Wis. 434, 77 N.W. 745, Wheeler v. Seamans, 123 Wis. 573, 102 N.W. 28.

In Ferry v. State, supra, we said that defendant's contention that the evidence did not sustain a conviction could not be considered absent a motion to set aside the verdict and for a new trial. It will be observed, however, that in that case we stated that the court had given the entire record careful consideration and refused to disturb the conviction. In other words, although the author's statement of the law is erroneous the court applied the correct rule--it did review the testimony.

Defendants contend that there is no credible evidence to support either of the jury's findings, that Dempsey was negligent as to his position on the highway, or that he was causally negligent as to driving under the influence of fermented malt beverages. Defendants do not attack the finding that Dempsey was intoxicated. They urge, however, that there was no basis for the finding that there was a causal relationship between that fact and the accident. They state the issue as follows:

'The question of Dempsey's intoxication may be of slight importance in this case. The real question is, which driver was on the wrong side of the road. If Dempsey was on the wrong side, then there may well be a causal connection between his drinking and the accident. If, however, as appellants contend, Dempsey was on his own side of the road, there is no causal connection between his drinking and the accident.'

We agree that the issue is correctly stated.

The roadway was surfaced with blacktop, twenty-one feet in width, with a two foot shoulder on each side. There was a guard rail consisting of posts connected with steel cables on each side. The center of the roadway was marked by a broken white line. The roadway was dry and at the point of the accident was fairly straight and level.

On direct examination Dempsey testified that just before the accident he was driving his truck at the rate of about forty miles per hour; that he saw the automobile when it was two or three blocks away from him and that it was then on its own side of the road; that he was then on his side of the road; that when the vehicles were about three car-lengths apart the McNamer car came across the center line, got over on to Dempsey's side of the road and hit the truck at the left running board and door; that the left front of the car struck the truck; that after the impact the car went under the corner of the rack of the truck; that the truck shoved the car back toward the north lane of traffic, the north side of the road; that when he first saw the car invading his lane of traffic he pulled over as close to the south guard rail as he could get; that he does not know whether he struck the guard rail at that time; that he was right close to the south guard rail when the vehicles came together; that when the vehicles collided his brakes failed and the truck proceeded along the guard rails and that it seemed finally that the truck hooked in the guard rail, turned sideways, and when it came to the end of the guard rail tipped over on its left side; that when the truck came to a stop it was facing due south, the front of it over the ditch on the south side of the road; that the front wheels of the truck were knocked from under it.

On cross-examination he testified that McNamer's car came into his lane of traffic, gradually at first, and then came 'right over'; that the car came into his lane of traffic at an angle; that his truck continued on the south edge of the highway at all times that he never entered the north lane of traffic or even the center of the highway until the truck was hurled around after the impact; that he was on his right hand side as far as he could get; that after the accident the McNamer car was backed up against the north guard rail; that after the accident he saw the car in the north lane of traffic facing southwest; that he did not know if all of it was in the north lane of traffic. At an adverse examination he had testified that...