Rakowski v. Zimmerman
| Decision Date | 02 December 1914 |
| Citation | 149 N.W. 214,158 Wis. 539 |
| Parties | RAKOWSKI v. ZIMMERMAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.
Action by John Rakowski against George Zimmerman. From orders granting a new trial after a special verdict in plaintiff's favor and denying his motion for judgment on the verdict, plaintiff appeals. Affirmed.
This action was brought to recover damages for the alleged negligence of the defendant. Among other defenses, the defendant alleged as a separate defense compromise, settlement, and release in full for and on account of the cause of action alleged.
The jury returned the following verdict:
First question: Was the place where plaintiff worked at the time of the injury sufficiently safe to make it free from danger to the employés performing such work as plaintiff did, so far as the nature of their employment reasonably permitted? Answer: No.
Second question: If you answer the first question “No,” was the failure of the defendant to furnish to the plaintiff, at and just before the time of the injury, a place to do said work sufficiently safe to make it free from danger to the employés performing such work, so far as the nature of their employment reasonably permitted, the proximate cause of the injury? Answer: Yes.
Third question: Did the defendant direct the plaintiff to set the temporary braces in the ditch not more than about three feet apart? Answer: No.
Fourth question: Did the defendant direct the plaintiff to set the temporary braces in the ditch six feet apart? Answer: Yes.
Fifth question: Did the plaintiff, when he placed the temporary braces six feet apart at the place of the accident, fail to use ordinary care, and, if you so find, did the want of such care proximately contribute to the injury? Answer: No.
Sixth question: Did the plaintiff sign the release of defendant's Exhibit 1? Answer: Yes.
Seventh question: Did the plaintiff understand the nature and effect of the release? Answer: No.
Eighth question: If you answer the seventh question “No,” was the plaintiff induced by false representation of the agent, Dorow, to believe the writing he signed to be a receipt for wages merely? Answer: Yes.
Ninth question: If you answer the eighth question “Yes,” did the plaintiff, in relying upon said representations and in signing said paper, use due care? Answer: Yes.
Tenth question: Did the plaintiff accept the $25 last paid him by the defendant with the understanding that no further claim should be made by him upon defendant for his injuries? Answer: No.
Eleventh question: What sum of money will reasonably compensate plaintiff for his injuries? Answer: $2,500.
Plaintiff moved for judgment on the verdict, and the defendant made the usual motions to change answers of the jury and for judgment and for new trial on various grounds. The court denied plaintiff's motion, and made an order setting aside the verdict and granting a new trial, and ordered the costs and disbursements of the former trial paid by the defendant upon the following grounds:
The plaintiff appealed from the order denying his motion for judgment and granting a new trial.
Lehr, Kiefer & Reitman, of Milwaukee. (J. Elmer Lehr, Julius E. Kiefer, and Max Schoetz, Jr., all of Milwaukee, of counsel), for appellant.
Quarles, Spence & Quarles, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for respondent.
KERWIN, J. (after stating the facts as above).
[1][2] Counsel for appellant argues that there was sufficient evidence to support the verdict, hence the court below was in error in granting a new trial. The trial court is not precluded from granting a new trial in every case where there is evidence sufficient to support the verdict. Within its discretion it has power, in a proper case, to grant a new trial, even though there be sufficient evidence to support the verdict, and its order in that regard, will not be disturbed unless there is an abuse of discretion. We find no abuse of discretion in the present case.
On the part of the respondent it is argued that there was not sufficient evidence to support the verdict, and that we ought on the respondent's exceptions, though he took no appeal, to grant him affirmative relief and dismiss the plaintiff's complaint. Whether this court would in a proper case and under existing statutes grant such relief to a party who had not appealed we need not, and do not, now decide, because we do not regard the present case one in which the power should be exercised.
The order appealed from is affirmed.
In this case the court held, without dissent, as I understand it, that the case was a proper case for a new trial, and hence that the order of the trial court was right, and the question whether relief might be granted to respondent upon his exceptions when he had taken no appeal was not before us for decision. When that question is fairly presented for decision, this court will doubtless meet it fairly and solve it courageously, after full consideration and discussion. I know of no reason why any opinion should be expressed upon it until that time, nor do I know of anything in the recent history of this court which should give any one any cause to fear that, when that time comes, any merely technical rule of procedure will be elevated into a vested right, or given undue sanctity.
Respondent's counsel contend, with good warrant, that the trial court should have gone much further than to set aside the verdict and grant a new trial; that the evidence clearly showed appellant's claim was without merit, and, therefore, instead of burdening respondent and the public with another trial that the action should have been dismissed with costs. Proper motions to that end were made below, and exceptions taken to the denial thereof. Counsel now urge upon this court an extension of the rule that a respondent may have the benefit of exceptions taken in his behalf in the court below in support of the judgment, rendering innocuous exceptions on behalf of appellant which might otherwise be efficient. That is a novel proposition; but has such merit that I think it should not be passed without serious consideration and some expression of opinion.
The doctrine which we are invoked to extend to the new situation, and the companion doctrine that one against whom an appeal is taken, but who does not cross appeal, cannot have the benefit of his exceptions to secure a modification or reversal of the judgment in his favor, are mere practice matters, wholly of judicial creation. If mere technical rules of procedure could be so sanctified by time as to preclude their being changed by the power which originated them and made to give way to the pervading conception of the present--that such interferences with the competency and willingness and duty of courts to pronounce, as speedily and with as little costs to parties and the public as possible, upon the justice of a controversy within their grasp, and in its entirety, so far as due conservation of the rights of all will permit, should be, as far as practicable, relegated to the obsolete and unsuitable to modern conditions,--then the rules in question would be impregnable to mere judicial effort. Their ancient origin is indicated in the following: Knox v. Cleveland, 13 Wis. 245;Lee v. Dunlop, 15 Wis. 387;Maxwell v. Hartmann et al., 50 Wis. 660, 664, 8 N. W. 103;Hoey v. Pierron, 67 Wis. 262, 30 N. W. 692;Hackett v. Western Union Tel. Co., 80 Wis. 187, 49 N. W. 822;Mendota Club v. Anderson et al., 101 Wis. 479, 78 N. W. 185;Hopkins et al. v. Langton et al., 30 Wis. 379.
One is liable to be misled by the citation in Hackett v. Western U. Tel. Co., Maxwell v. Hartmann, and Mendota Club v. Anderson, supra, of section 3070, Stats., suggesting, inferably, that authority to review respondent's exceptions in support of the judgment is referable to the written law. There is nothing of the sort in the letter of that section, nor is there in its spirit, so far as I can perceive. The power of the court is grounded in the fundamental law. Except as the Legislature has provided new methods of its acquiring possession of a controversy for the purpose of review, and provided reasonably practicable regulations, the court is largely master of its own modes of procedure and may change the same, reasonably, from time to time as changed conditions seem to demand to enable it to fulfill, as fully as possible, its constitutional functions.
The statute in mere practice matters, in general, is not a limitation of power, but rather an extension or regulation thereof. The whole purpose of the Code was to broaden and simplify, eliminating the multitude of common law technicalities which had grown to be interferences with judicial competency to proceed directly to the meat of a litigated matter and solve it, and do it with finality on appeal in case of the justice of the case being clear. In that broad conception it was provided that:
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Muscoda State Bank v. Kolar
...Statutes. An interesting review of the decisions will be found in the separate opinion of Mr. Justice Marshall in Rakowski v. Zimmerman, 158 Wis. 539, 542, 149 N. W. 214. [5] It is next argued that the court erred in its instructions to the jury as to the burden of proof. Question No. 1 was......
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Reuter v. Hickman, Lauson & Diener Co.
...Milwaukee, 155 Wis. 81, 143 N. W. 1066. This is so even though there be some evidence to sustain the verdict set aside. Rakowski v. Zimmerman, 158 Wis. 539, 149 N. W. 214. Applying these principles to the present case, we find no ground for disturbing the order of the trial court. [2] There......