Papenfus v. Shell Oil Co.

• Decision Date: 12 April 1949
• Citation: 254 Wis. 233,35 N.W.2d 920
• Parties: PAPENFUS v. SHELL OIL CO., Inc., et al.
• Court: Wisconsin Supreme Court

254 Wis. 233

35 N.W.2d 920

PAPENFUS

v.SHELL OIL CO., Inc., et al.

Supreme Court of Wisconsin.

Feb. 15, 1949.

Rehearing Denied April 12, 1949.

Appeal from a judgment of the Circuit Court for Walworth County; Alfred L. Drury, Judge.

Reversed.

The plaintiff, Walter Papenfus, recovered judgment against the defendant Shell Oil Company, Inc., and Harold L. Tilton, for $11,713.65 for personal injuries and property damage sustained when the manure spreader upon which he was riding was struck from the rear by the automobile of Tilton, who was then on business of his principal, Shell Oil Company. From that judgment Tilton and the Oil Company appeal.

Plaintiff also recovered judgment of $101.05 for costs against Tracy K. Seaver, impleaded defendant, who counterclaimed for judgment compelling satisfaction of one-half of any judgment secured by plaintiff because of a settlement between Seaver and plaintiff wherein Seaver's insurance carrier paid to plaintiff $1,900 and took a covenant not to sue. Seaver recovered judgment of $124.37 costs against the defendants Tilton and Shell Oil Company upon dismissal of their cross-complaint against him for contribution as a joint tort-feasor.

The facts will be stated in the opinion.

FRITZ, J., dissenting. Godfrey, Pfeil & Godfrey, of Elkhorn (Emmett Horan, of Milwaukee, of counsel), for appellants.

Thorson, Seymour & Korf, of Elkhorn, for plaintiff and respondent.

Cavanagh, Stephenson, Mittelstaed & Sheldon, of Kenosha, for interpleaded respondent.

HUGHES, Justice.

The plaintiff is a farmer in Walworth county. His farm is located on Highway 12 just north of Elkhorn. On April 22, 1946 he was driving a team and manure spreader north on Highway 12 from his barnyard toward a field. The defendant Tilton was driving his automobile north on Highway 12 from his home in Wilmette, Illinois to Madison, Wisconsin on business of his employer Shell Oil Company. The impleaded defendant Seaver is a farmer living near Harvard, Illinois, and was driving his automobile north on Highway 12 to the village of East Troy. As they left the city of Elkhorn Tilton was ahead of Seaver.

There was no dispute that the Tilton car struck the back of the plaintiff's manure spreader and knocked the plaintiff to the pavement, causing the injuries for which he seeks to recover.

There was sharp conflict in the testimony as to whether the accident occurred as a result of the negligence of the defendant Tilton or of the impleaded defendant Seavor.

After the accident plaintiff settled all claims that he had against Seaver by accepting $1,900 from Seaver's insurance carrier and giving a covenant not to sue. Thereafter he brought suit against Tilton and Shell Oil Company, and upon the application of the defendants, Seaver was joined as a party defendant.

The plaintiff claimed that the accident occurred as a result of the negligence of Tilton in that he overtook and crashed into the rear of plaintiff's manure spreader.

The defendants contended that as Tilton approached the manure spreader cars were coming from the north so as to interfere with his passing and that at seven hundred feet to the rear of the spreader he slowed down; that at three hundred and fifty feet he further slowed down, and at the time of the accident he was right behind the plaintiff, proceeding at about the same speed as the spreader. Tilton's contention was that Seaver then crashed into the rear of his car, driving it with force into the spreader.

The case was submitted upon a special verdict, the first question of which read:

‘Did the automobile operated by the interpleaded defendant Tracy Seaver, collide with the rear of the automobile operated by the defendant, Harold Tilton, before the automobile operated by the defendant, Harold Tilton, collided with the manure spreader?

‘Answer: No.’

There followed questions as to the negligence of Tilton and its causal effect, and questions as to the negligence of Seaver and the causal effect of his negligence, if established.

Question 6 read:

‘At the time and place in question and under the conditions and circumstances shown by the evidence was the defendant, Harold Tilton, negligent:

‘(a) With respect to suddenly instead of gradually reducing the speed of his automobile immediately before the Seaver car collided with it?

‘Answer: Yes.’

The jury found in response to question 7 that Tilton's negligence, as established by its answer to question 6, was causal.

The trial court instructed the jury that the burden of proof as to questions 1, 4 and 5 rested upon the defendant Tilton; as to questions 2 and 3, upon the plaintiff; as to questions 6 and 7, upon the interpleaded defendant Seaver.

We are of the opinion that the trial court, in instructing the jury that the burden of proof rested upon the defendant to convince the jury that question 1 should be answered in the affirmative, was in error and that such error was prejudicial to Tilton.

A special verdict shall consist of plain questions calling for a finding of utlimate facts by the jury. Carlson v. Strasser, 1942, 239 Wis. 531, 2 N.W.2d 233.

In Wausaukee v. Lauerman, 1942, 240 Wis. 320, 326, 3 N.W.2d 362, 365, it was said:

‘The jury was asked whether the rainfall was ‘greater than an ordinarily prudent and intelligent owner of a dam on the Wausaukee river ought reasonably to anticipate might occur.’ This question probably should not have been included in the special verdict as it simply constituted a splitting of the issue of negligence or a cross-examination of the jury as to that issue. There was also included in the verdict proper questions relating to defendant's negligence: (1) With respect to maintaining openings in the spillway; (2) with respect to the discharge of water through the flume pipe, and (3) with respect to properly maintaining the...