Pruss v. Strube
| Decision Date | 30 January 1968 |
| Citation | 37 Wis.2d 539,155 N.W.2d 650 |
| Parties | Gerhardt PRUSS and Anneliese Pruss, Plaintiff-Respondents, v. Dennis STRUBE and the Singer Co., a corporation, Defendant-Appellants. |
| Court | Wisconsin Supreme Court |
Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for appellants.
Roland J. Steinle, Jr., Milwaukee, for respondents.
It is claimed that because there was no dispute that both vehicles approached the intersection at approximately the same time, the court overemphasized Strube's duty in failing to yield the right-of-way by giving certain instructions to the jury. The instructions provided that the jury could find the two automobiles did not approach the intersection at the same time and defined 'approximately the same time.' These instructions were in addition to an instruction on right-of-way. We do not think the trial court erred in its instructions. Whether the cars approached the intersection simultaneously so as to give rise to a right-of-way was a disputed issue. Both drivers were negligent as to lookout and if the cars entered the intersection approximately the same time Strube had the additional duty to yield the right-of-way. The evidence justified the giving of the instructions, which were Wis.J.I.--Civil, sec. 1157, excepting the part relating to speed, which was not in issue.
The second contention of Strube relates to the inadmissibility of testimony that no arrest had been made because of the accident. At the trial Strube was called adversely and during the course of examination was asked if he had seen any pictures of the accident. He replied not since 'we went to see the city attorney.' He was also asked whether the police had taken any pictures at the scene. No objection was made to these questions but counsel for Strube apparently thought this questioning created an inference that Strube was 'summoned' to the city attorney's office. For the purpose of clarification, Strube's counsel asked him whether any arrests were made, to which question Strube answered no. This answer was ordered stricken as immaterial. Relying on Fields v. Creek (1963), 21 Wis.2d 562, 124 N.W.2d 599, Strube argues the door to this answer was opened by the questioning of him relating to his visit to the city attorney's office and he had a right to clarify the inference he was summoned by showing no arrest had been made.
We think the proper rule applicable is not whether the door was open but whether the answer was admissible under the rule of curative admissibility, that is, whether one inadmissibility justifies or excuses another. This rule generally involves evidence otherwise immaterial. There are three different versions of the rule competing for recognition: (1) The admission of an inadmissible fact, without objection by the opponent, does not justify the opponent rebutting it by other inadmissible facts; (2) the opposite, the opponent may resort to similar inadmissible evidence; (3) the opponent may reply with similar evidence only when it is needed to remove an unfair prejudice which might otherwise ensue from the original evidence. , 1 Wigmore, Evidence, p. 304, sec. 15. The trial court concluded the evidence relating to the visit to the city attorney's office did not unfairly prejudice Strube because any inference of arrest because of a visit to the city attorney's office was not the only inference which might have been drawn. We agree the trial court's ruling was correct but place it upon the third statement of the rule of curative admissibility and hold that on these facts the answer was not needed to remove any unfair prejudice. We doubt if a jury would draw any inference of greater fault because the defendant was at the city attorney's office.
A more important assignment of error is the refusal of the trial court to grant a new trial in the interest of justice. Strube claims the verdict is perverse and the apportionment of the negligence cannot stand. The trial court refused to interfere with the jury's apportionment of negligence on the ground it considered apportionment of negligence to be a jury function in the great majority of cases and because of the rarity of the instances in which the court could rule the contribution of the causal negligence of the parties is equal, relying on Heine v. Oswald Jaeger Baking Co. (1957), 275 Wis. 26, 80 N.W.2d 791; Maus v. Cook (1961), 15 Wis.2d 203, 112 N.W.2d 589; Bell v. Duesing (1957), 275 Wis. 47, 80 N.W.2d 821. That is undoubtedly true, regardless of how weak the argument based on 'rarity' or 'great majority' is. Bishop v. Johnson (1967), 36 Wis.2d 64, 152 N.W.2d 887. But, the rule is just as well settled that a new trial may be granted in the interest of justice because the verdict is against the great weight of the evidence even though there is sufficient credible evidence to support the jury's...
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Gross v. Midwest Speedways, Inc., 75-551
...with Lawver v. City of Park Falls, 35 Wis.2d 308, 151 N.W.2d 68 (1967) and ending with Gross v. Denow. See, e. g., Pruss v. Strube, 37 Wis.2d 539, 546, 155 N.W.2d 650 (1968); Vincent v. Pabst Brewing Co., 47 Wis.2d 120, 139, 177 N.W.2d 513 (1970) (Hallows, C. J., dissenting); and Bourassa v......
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Gross v. Denow
...v. Park Falls (1967), 35 Wis.2d 308, 314, 151 N.W.2d 68, in the concurring opinion, and I have reiterated it in Pruss v. Strube (1968), 37 Wis.2d 539, 546, 155 N.W.2d 650, and again in Vincent v. Pabst Brewing Co. (1970), 47 Wis.2d 120, 139, 177 N.W.2d 513 (dissenting opinion) and Bourassa ......
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Vincent v. Pabst Brewing Co.
...Joint Resolution 59; 1969 Assembly Joint Resolution 53.1 Lawver v. Park Falls (1967), 35 Wis.2d 308, 151 N.W.2d 68; Pruss v. Strube (1968), 37 Wis.2d 539, 155 N.W.2d 650; Spath v. Sereda (1969), 41 Wis.2d 448, 164 N.W.2d 246; Hallows, Comparative Negligence, 19 Fed. of Ins. Counsel (1969), ......
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State v. Rochelt, 90-1402-CR
...Perhaps Sutton's testimony was admissible under the common law rule of curative admissibility described in Pruss v. Strube, 37 Wis.2d 539, 543-44, 155 N.W.2d 650, 652 (1968). However, the state does not raise that issue, and we lack any guidance whether the rule survives adoption of the Wis......