Schemenauer v. Travelers Indem. Co.

• Decision Date: 11 April 1967
• Citation: Schemenauer v. Travelers Indem. Co., 149 N.W.2d 644, 34 Wis.2d 299 (Wis. 1967)
• Parties: Lucille SCHEMENAUER and Clarence Schemenauer, Plaintiff-Respondents, v. The TRAVELERS INDEMNITY CO., Rural Mutual Insurance Co., and Anne Marie Prefontaine, Defendant-Respondents, St. Paul Fire & Marine Insurance Co., Home Mutual Insurance Company, Francis J. Coffey and Erwin F. Kuehl, Defendant-Appellants.
• Court: Wisconsin Supreme Court

Page 644

149 N.W.2d 644

34 Wis.2d 299

Lucille SCHEMENAUER and Clarence Schemenauer, Plaintiff-Respondents, v.The TRAVELERS INDEMNITY CO., Rural Mutual Insurance Co., and Anne Marie Prefontaine, Defendant-RespondentsSt. Paul Fire & Marine Insurance Co., Home Mutual Insurance Company, Francis J. Coffey and Erwin F. KuehlDefendant-Appellants.

Supreme Court of Wisconsin.

April 11, 1967.

Rehearing Denied June 6, 1967.

Marth & Marth, West Bend, for plaintiffrespondents.

Edward T. O'Neill, Fond du Lac, for defendantrespondents.

HALLOWS, Justice.

Although there are many issues raised, only those which are dispositive of the case and some which may again appear on the retrial will be considered.

Coffey's Appeal

Coffey argues for reversal on the ground he was confronted with an emergency as a matter of law and the credible evidence is insufficient to support a finding of causal negligence on his part.These arguments require a review of the evidence which under long established rules must be viewed in a light most favorable to support the verdict.Rodenkirch v. Johnson(1960), 9 Wis.2d 245, 101 N.W.2d 83;Ruid v. Davis(1959), 8 Wis.2d 288, 99 N.W.2d 129;Maus v. Cook(1961), 15 Wis.2d 203, 112 N.W.2d 589.Coffey claimed he had amnesia and could not remember any of the facts of the accident or what transpired for six hours thereafter, so they must be found elsewhere.Neither Mrs. Prefontaine nor Mrs. Schemenauer saw Coffey except as a blur immediately before the impact.The testimony is in conflict whether Mrs. Prefontaine stopped her car at the arterial sign.She claims she did; defendant Kuehl testified she did not but came into the intersection at about 55 miles per hour.Kuehl, the only witness who had any direct observance of Coffey, testified he saw Coffey approach the intersection from the east at about 55 miles per hour.He did not observe Coffey slow down or swerve before colliding with the Prefontaine car.Although Highway 23 is in a broad curve, the intersection with County Trunk G is plainly visible from a distance at least 500 feet to the east, in which distance there is a warning sign, curve sign, junction sign, and school sign.

Coffey's passenger, his fiance, testified she was dozing and listening to the radio and did not hear a horn or feel the application of brakes before the impact.There were no skid marks left by the Coffey car or any evidence that his car was braked.The impact was in his lane of travel.Coffey had physical defects consisting of an artificial limb on his right leg below the knee, his left ankle had been fused and was partially immobile and his hands were deformed.From this evidence the jury had a right to find Coffey drove his car at approximately 55 miles per hour into the intersection without seeing the Prefontaine care and was therefore causally negligent as to lookout.

But Coffey argues he was faced with an emergency as a matter of law because whether Mrs. Prefontaine stopped for the arterial or not, in either case she pulled out in front of him so suddenly as to leave no time, or at most two seconds, for defensive action; hence, no skid marks.While this inference might be drawn, the jury apparently did not accept this view of the accident although it had been given the emergency instruction.The jury apparently thought Anne Marie Prefontaine stopped for the arterial highway and Coffey did not see her, or would have seen her sooner if he had observed the warning signs.To hold an emergency existed as a matter of law the facts must give rise to only one inference that the time element was so short as not to permit defensive action.

The difficulty with Coffey's argument is that other reasonable inferences as to the existence or nonexistence of an emergency might also be drawn.Coffey might have had as much as six or seven seconds to determine action if he had seen Mrs. Prefontaine stop at the sign, if she did stop.We cannot hold as a matter of law that Coffey had only two seconds in which to take action.In Cook v. Thomas(1964), 25 Wis.2d 467, 471, 131 N.W.2d 299, 302, we said:

'The application of the emergency rule rests upon the psychological fact that the time which elapses between the creation of the danger and the impact is too short under the particular circumstances to allow an intelligent or deliberate choice of action in response to the realization of danger.Prosser, Law of Torts, 3d ed., ch. 5, p. 171, sec. 33;Kaestner v. Milwaukee Automobile Ins. Co.(1948), 254 Wis. 12, 35 N.W.2d 190;Papacosta v. Papacosta(1957), 2 Wis.2d 175, 85 N.W.2d 790;Siegl v. Watson(1923), 181 Wis. 619, 195 N.W. 867;Baird v. Cornelius(1961), 12 Wis.2d 284, 107 N.W.2d 278;Deignan v. New Amsterdam Casualty Co.(1958), 2 Wis.2d 480, 87 N.W.2d 529.This time interval may in some cases be so short that no choice of alternative action can be made.The reaction is practically instinctive or intuitive and as a matter of law there can therefore be no negligence.SeeKlas v. Fenske(1946), 248 Wis. 534, 22 N.W.2d 596.And, this is so for inaction as well as action.An emergency may exist in a layman's sense, Hoehne v. Mittelstadt(1948), 252 Wis. 170, 31 N.W.2d 150;Roberts v. Knorr(1951), 260 Wis. 288, 50 N.W.2d 374, which requires quick action and thinking upon the part of the driver but the time is not so short as to relieve the actor from exercising ordinary care in his reaction to the danger.Whether the doctrine should be applied and if so, whether an instruction should be given to the jury to determine the fact question of the existence of an emergency or whether the doctrine should be applied as a matter of law is in the last analysis a question of degree in terms of time within which a person is required to act.'

In Shaw v. Wuttke(1965), 28 Wis.2d 448, 453, 137 N.W.2d 649, 651, we stated:

'Before a party is entitled to the benefits of the emergency doctrine he must be free from negligence which contributed to the creation of the emergency.Cook v. Thomas(1964), 25 Wis.2d 467, 131 N.W.2d 299;Borowske v. Integrity Mut. Ins. Co.(1963), 20 Wis.2d 93, 121 N.W. 287;Baird v. Cornelius(1961), 12 Wis.2d 284, 107 N.W.2d 278;Blasi v. Drafz(1960), 12 Wis.2d 14, 106 N.W.2d 307;Deignan v. New Amsterdam Casualty Co.(1958), 2 Wis.2d 480, 87 N.W.2d 529;Hutzler v. McDonnell(1942), 239 Wis. 568, 2 N.W.2d 207.If there is a factual dispute as to such negligence and assuming the time element is so short as to make the doctrine otherwise applicable, a person is entitled to the emergency-doctrine instruction and it is for the jury to determine its application.'

There was sufficient credible evidence to sustain a finding of causal negligence on Coffey's part and no emergency existed as a matter of law.

At the trial it was apparent Coffey's claim of amnesia was under attack.During the trial Coffey questioned a witness for the plaintiff regarding injuries capable of producing amnesia but did not call his own treating physician or explain why he was not called to fortify the claim of amnesia.At the request of the plaintiffthe court gave the jury the absent-witness instruction, Wis. J. I.--Civil, No. 410.¹This is now claimed to be error.Coffey had no duty to prove he had amnesia; whether he had that condition or not affected his credibility and was not an element of his defense.The question whether the absent-witness instruction is applicable to the subsidiary question of a party's credibility or is confined to material facts constituting a cause of action or a defense has apparently not been decided by our court or in other jurisdictions.

The doctrine of one's conduct as evidence of a weak cause is well established in the law of evidence and in this state.Professor Wigmore in 2 Wigmore on Evidence (3d ed.) 162, sec. 285, states, 'The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.'He also points out this inference cannot be fairly made except upon certain conditions and is open to explanation by circumstances which make some other hypothesis a more natural inference than the party's fear of exposure.SeeSwietlik, Hearsay Rule in Wisconsin--Part Two(1961), Vol. 1, No. 3, Wisconsin Continuing Legal Education 73, 96;29 Am.Jur.(2d), Evidence, sec. 180, p. 224;Booth v. Frankenstein(1932), 209 Wis. 362, 370, 245 N.W. 191;Shaw v. Wuttke, supra.

Coffey's argument does not concern the accuracy of Wis. J. I.--Civil InstructionNo. 410 but whether the instruction should have been given at all.We therefore do not pass upon its sufficiency and accuracy as an instruction but we note it refers to 'a material fact of the case.'Generally the rule is phrased in language of evidence which would properly be used to prove a cause of action or a defense.But perhaps this language is broad enough to cover the issue of credibility and the conditions for the application of the rule to this issue would seem to exist.Coffey's treating physician would know if he had amnesia and could testify to the type of injury Coffey received and whether it would result in amnesia.The treating doctor was presumably available as a witness to his client and it was more natural for Coffey to call his own doctor than for the plaintiffs to do so.In Feldstein v. Harrington(1958), 4 Wis.2d 380, 90 N.W.2d 566, we applied the rule to a situation in which the defendant's physician who had examined the plaintiff was not called to testify as to the plaintiff's physical condition and held it was error not to permit the plaintiff to prove he had been examined by the defendant's physician at the defendant's request so that comment on the defendant's...