Ollinger v. Grall

• Decision Date: 18 October 1977
• Docket Number: No. 75-346,75-346
• Citation: 80 Wis.2d 213,258 N.W.2d 693
• Parties: Robert J. OLLINGER and Mary Ollinger, Appellants, v. Kenneth R. GRALL, Robert D. Grall, Planet Insurance Company, Gordon J. Plato, and Insurance Company of North America, Respondents.
• Court: Wisconsin Supreme Court

Page 693

258 N.W.2d 693

80 Wis.2d 213

Robert J. OLLINGER and Mary Ollinger, Appellants, v. Kenneth R. GRALL, Robert D. Grall, Planet Insurance Company Gordon J. Plato, and Insurance Company of North America, Respondents.

No. 75-346.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 6, 1977.

Decided Oct. 18, 1977.

This action arises from an automobile accident. The trial court denied the plaintiffs' motion for a new trial and dismissed their complaint. The plaintiffs appeal.

James R. Mattison and Becker, Kinnel, Doucette & Mattison, Milwaukee, on briefs for appellants.

Robert A. Slattery, Proctor D. Robison and Frisch, Dudek & Slattery, Ltd., Milwaukee, on briefs for respondents Kenneth R. Grall and Planet Ins. Co.

Merten, Connell & Sisolak, S. C., Milwaukee, on brief for respondents Gordon J. Plato and Insurance Co. of North America.

BEILFUSS, Chief Justice.

The accident in question took place on November 3, 1973, shortly after 7 p. m., on North Teutonia Avenue in the City of Milwaukee. Teutonia Avenue is a divided street with a grassy median strip surrounded by a concrete curb. There are three traffic lanes on each side of the median strip a right lane that can be used for parking, a center lane, and a left lane adjacent to the median strip.

The plaintiff, Robert J. Ollinger, was a passenger in a vehicle owned and driven by the defendant, Gordon J. Plato. Ollinger and Plato had been friends and employees of the Schlitz Brewing Company for many years. Both lived in Menomonee Falls, Wisconsin and were returning to their homes after work at the time of the accident.

There are inconsistencies and contradictions in the testimony, but the following is an adequate statement of the facts:

Plato was driving his 1969 Buick Skylark. Ollinger was in the right front passenger seat. Plato was traveling in the center traffic lane, deviated to the left lane adjacent to the curb, and struck the curb. A tire on the left side blew out. It is not clear whether the tire blew out before or after it struck the curb. Plato stopped his car at the curb line and got out to inspect it. His lights were on but there is a dispute as to whether his flashing stop lights were on. Plato stated the front tire was flat and was going to look at the rear left tire. Ollinger then got out the right front door of the car.

Ollinger testified that just before he got out of the car there was no traffic immediately to the rear. When he got out he noticed a car coming from the rear in the same lane. He waived his hat or his arms. He stated he turned around to walk away; an eyewitness said he continued to stand next to the right door facing the oncoming car and waving his arms for about ten seconds and until he was struck by the oncoming car.

The eyewitness testified the car coming up from the rear stayed in the left lane at about the speed limit of 40 miles per hour until it was about 20 to 25 feet from the Plato vehicle. It then turned to the right. This car struck the door of the Plato car and also struck Ollinger, throwing him in the air for about 10 feet and injuring him.

The car that struck the Plato vehicle and Ollinger was a 1973 Chevrolet Station Wagon driven by the defendant, Kenneth R. Grall, and owned by his father. Grall was seventeen years old and he, too, was on his way home from work.

Grall testified he turned onto Teutonia Avenue and into the left lane about 150 yards from the scene of the accident at a speed of about 15 miles per hour. There were no obstructions to his vision and he could see about 400 yards. He noticed the Plato vehicle when he was about 100 yards from it. The tail lights of the Plato vehicle were on but he could not determine if the car was parked or moving. His speed increased to about 35 miles per hour by the time he was 50 yards from Plato's car. At 30 yards he came to the conclusion it was parked. He slowed down to 25 miles per hour by the time he was 20 yards away and then turned gradually to the right. He did not use his brakes; did not see Ollinger until the front of his car was even with the back of Plato's, and did not see him wave his arms. After he hit the door of Plato's car he put on his brakes and struck Ollinger.

The jury found Ollinger causally negligent, Plato causally negligent, and Grall negligent but not causally so. In the comparative negligence question, 50 percent of the negligence was attributed to the plaintiff Ollinger, 38 percent to the defendant Plato, and 12 percent to the defendant Grall.

The jury awarded Ollinger $8,000 for his personal injuries; the court found his medical expenses in the amount of $3,157.80, and $4,465 for loss of earnings. Nothing was awarded to Mary Ollinger, the wife of Robert, for loss of services, society and companionship of her husband.

The trial court in ruling on motions after verdict changed the answer to the cause question of Grall from "No" to "Yes" and directed judgment on the verdict dismissing the complaint of Robert and Mary Ollinger.

The plaintiffs-appellants raise several issues on appeal. Their principal argument is that it was error for the trial court to change the causation answer concerning the negligence of the defendant-respondent Grall and to fail to order a new trial because of the inconsistent verdict.

The answer in the verdict, which attributed 12 percent of the negligence to Grall, was inconsistent with the answer which found his negligence was not a cause of the accident.

The appellants assert that the trial court did not conform to rules for inconsistent verdicts as set forth in Statz v. Pohl, 266 Wis. 23, 62 N.W.2d 556, 63 N.W.2d 711 (1954). Those rules are as follows:

"(1) If the issue of causal negligence is for the jury and the party inquired about is exonerated but the jury in its comparison of negligence erroneously attributes to such party some degree of causal negligence, the verdict is inconsistent, and a new trial must be granted;

"(2) If it be determined that the party inquired about is free from causal negligence as a matter of law and the jury has exonerated him but has also attributed to him some degree of causal negligence, then the court should strike the answer to the question on comparison as surplusage and grant judgment accordingly." (p. 29, 62 N.W.2d p. 559)

" '(3) If but one element of negligence is submitted to the jury and the court can find as a matter of law that the party inquired about in the question is guilty of causal negligence and the jury finds that he is not, and in answer to the question on comparative negligence attributes to him some degree of causal negligence, the court should change the answer to the question which inquires as to his conduct from "No" to "Yes" and permit the jury's comparison to stand with judgment accordingly.' " (p. 32a, 63 N.W.2d p. 712)

The contention is that rules (2) and (3) do not apply and that a new trial should have been ordered under rule (1). Rule (2) does not apply because the trial court, as expressed in its ruling on motions after verdict, was clearly of the opinion that Grall was negligent and his negligence was a cause of the accident as a matter of law.

Nor does rule (3) as written apply. Although an ultimate fact form of verdict was used which required only one answer to the inquiry as to whether Grall was negligent, the jury was instructed on two elements of negligence as to Grall, namely lookout and management and control. Rule (3) of Statz v. Pohl, supra, does not permit the trial court to change the "causal negligence" question from "No" to "Yes" where more than one element of negligence is submitted to the jury. If Statz v. Pohl is to be followed, rule (1) would apply and a new trial should be ordered. Recent cases of Hillstead v. Shaw, 34 Wis.2d 643, 150 N.W.2d 313 (1967); Seif v. Turowski, 49 Wis.2d 15, 181 N.W.2d 388, 183 N.W.2d 28 (1970); and Jahnke v. Smith, 56 Wis.2d 642 203 N.W.2d 67 (1973), cite Statz v. Pohl with approval. ¹

Our principal concern is whether rule (3) of Statz v. Pohl, supra, should be reconsidered. We believe it should. In 1954, when Statz v. Pohl was decided, the statute governing special verdicts ² did not provide for ultimate fact verdicts. In 1961 the statute was amended by virtue of a court rule ³ to permit the submission of an ultimate fact verdict (whether the party named was negligent without reference to specific acts or failure) in the discretion of the trial court. The statute was further amended when the Code of Procedure was adopted and now appears as sec. 805.12(1), Stats. ⁴

Underlying reasons for the adoption of the ultimate fact form of verdict were to prevent, in a sense, a cross-examination of the jury and to avoid inconsistent verdicts which required new trials to the expense of the litigants and the burden on the courts.

In the case at hand there is credible evidence that would allow the jury to find that Grall was negligent as to either lookout or management and control, or perhaps both. The observations of the eyewitness that Grall did not attempt to turn out of the left lane until he was 20 to 25 feet from the lighted Plato vehicle could lead to a finding of negligent lookout. Grall's testimony that he saw the Plato vehicle when he was 100 yards from it, increased his speed and realized it was parked when he was 30 yards from it with nothing to prevent him from braking his car and turning to the right to avoid the collision could lead to a finding of negligent management and control.

The argument often made, which in part resulted in the adoption of the ultimate fact form of verdict, was that if a driver was negligent as to lookout so as not to see the hazard or not in time to be able to do anything about it, his negligence was lookout and not negligent management and control. If the lookout was so faulty that the driver could not see the hazard, management and control did come into play.

As stated above, dependent upon which version of the facts the jury...