Schmid v. Olsen

• Decision Date: 13 April 1982
• Docket Number: No. 81-1004,81-1004
• Citation: 107 Wis.2d 289,320 N.W.2d 18
• Parties: Arthur A. SCHMID, Plaintiff-Appellant, * v. Charlotte M. OLSEN and American Family Mutual Insurance Company, a domestic corporation, and Associated Hospital Service, Inc., a domestic corporation, and United States of America, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 18

320 N.W.2d 18

107 Wis.2d 289

Arthur A. SCHMID, Plaintiff-Appellant, ^* v. Charlotte M. OLSEN and American Family Mutual Insurance Company, a domestic corporation, and Associated Hospital Service, Inc., a domestic corporation, and United States of America, Defendants-Respondents.

No. 81-1004.

Court of Appeals of Wisconsin.

Argued Dec. 23, 1981.

Opinion Released April 13, 1982.

Opinion Filed April 13, 1982.

Joseph G. Doherty, West Bend, for plaintiff-appellant; Bunk, Conter, Doherty & Griffin, S. C., West Bend, on brief.

Lydia Y. Cooley of Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, argued, for defendants-respondents; Norman C. Skogstad, Grafton, on brief.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

SCOTT, Judge.

The issue on this appeal is whether the trial court abused its discretion when it relieved a party from the effect of its failure to respond to a request for admission under sec. 804.11, Stats. We hold that the trial court did not abuse its discretion because allowing withdrawal of the admission served presentation of the merits on a genuine issue in this case and because Schmid did not show that he was prejudiced. Accordingly, the judgment is affirmed.

This case arose out of a collision between a motorcycle driven by Arthur Schmid and an automobile driven by Charlotte Olsen on March 23, 1976 in Washington county. Schmid commenced this action to recover for his injuries, including the loss of his leg. Olsen and her insurer answered and denied liability.

After a pretrial conference, the circuit court issued a pretrial order on April 14, 1980 which stated that all discovery, except additional depositions of medical witnesses, was completed. The order allowed three and one-half to four days for trial and set the trial to begin on August 5, 1980 or on January 13, 1981. The court ordered the parties to submit proposed jury instructions, verdict forms and trial briefs by July 25, 1980.

Schmid's attorney then served the defense counsel with various requests for admission. The first one, on April 17, 1980 requested the defendants to admit the reasonableness of Schmid's medical expenses. The second one was served on July 15, 1980, three weeks prior to the first scheduled trial date. By this request, Schmid's attorney asked defendants Olsen and her insurer to admit (1) that Olsen was seventy percent causally negligent, and, (2) that Olsen gave a statement to her insurer after the accident in which she stated that she did not see the motorcycle prior to the collision.

The defense attorney made no formal response to any of Schmid's requests for admission. Both parties did, however, submit their proposed jury instructions and verdict forms by the end of July.

The trial did not take place on August 5, 1980. On January 5, 1981, eight days before the second scheduled trial date, the defense attorney wrote and asked the court to consider his letter as a formal denial of the request to admit. The court received a responsive letter from the plaintiff's attorney on January 12, 1981.

Trial began on January 13, 1981. The court heard arguments regarding the effect of the defendants' failure to respond to the admissions. The judge accepted the medical expenses as stipulated evidence and held Olsen's statement to be conclusively established because the defense attorney failed to make a timely response to the requests for admission. On the request to admit seventy percent causal negligence, the court noted that a request to admit need not be limited to facts but may be used to seek opinions or the application of law to facts. However, the court ruled that the request was not an appropriate demand in this case because it "ran to the complaint" and because the defendants denied liability in their answer.

The case then proceeded to trial. Schmid's attorney subpoenaed the two eyewitnesses and the investigating police officer, and all three testified. At the end of the trial, the jury found defendant Olsen twenty-five percent causally negligent and assessed seventy-five percent of the causal negligence against Schmid. Schmid's attorney moved for judgment notwithstanding the verdict on grounds that the trial court committed error because it refused to hold that the admission constituted conclusive evidence of liability. The court denied Schmid's motion and ordered that judgment be entered dismissing the plaintiff's complaint with costs.

Requests for admission are governed by sec. 804.11(1)(a), Stats., which provides:

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of s. 804.01(2) set forth in the request that related to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.

The matter of which an admission is requested "is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves ... a written answer or objection ...." Sec. 804.11(1)(b), Stats.

The effect of an admission is set forth in subsection (2) of the statute as follows:

Any matter admitted under this statute is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to s. 802.11 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits ....

Schmid argues that because Olsen failed to respond to his request to admit seventy percent liability, the matter is deemed admitted and is conclusively established. He claims that the trial court committed error because its ruling limits the use of requests for admission to matters which are not denied in the pleadings.

Requests for admission, under the express terms of the statute, may encompass "any matters within the scope of s. 804.01(2)," Stats. Under sec. 804.01(2)(a), Stats., discovery is permitted for "any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party ...."

The Wisconsin statute governing requests for admission is identical to Federal Rule of Civil Procedure 36. Both the Wisconsin statute and the federal rule were amended in order to eliminate a requirement that requests be limited to matters "of fact." ¹

Under federal case law interpreting the amended rule, it is irrelevant that a request seeks admission of "ultimate facts," or that the matter is dispositive of the entire case. Campbell v. Spectrum Automation Co., 601 F.2d 246, 253 (6th Cir. 1979); City of Rome v. United States, 450 F.Supp. 378, 383 (D.C.D.C.1978), aff'd, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). Moreover, it does not matter that the plaintiffs bear the burden of proof on the issue they request the defendants to admit. Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 812 (7th Cir. 1942); City of Rome, 450 F.Supp. at 383.

We agree with Schmid's contention that a party may not be relieved of the effect of its admission solely on the basis that the request for admission pertains to issues raised in the pleadings. We conclude, however, that the circumstances of the present case provide sufficient, independent grounds to support the trial court's decision to allow withdrawal from the admission.

As Schmid concedes, the trial court's decision to allow withdrawal from an admission was an exercise of discretion. Brown v. Arlen Management Corp., 663 F.2d 575, 580 (5th Cir. 1981); Warren v. International Brotherhood of Teamsters, 544 F.2d 334, 340, 46 A.L.R.Fed. 810 (8th Cir. 1976). The trial court expressly acknowledged that requests under sec. 804.11, Stats., may seek admissions on mixed issues of law and fact. The court referred to the notes of the Judicial Council Committee (1974) to sec. 804.11, Stats. According to the committee, "the request need not be limited to 'fact or facts' but may seek, when appropriate, opinions of facts or of the application of law to fact" (emphasis added). The trial judge stated that "the key revolves around the words 'when appropriate.' " The court determined that Schmid's demand in this case was inappropriate not only because it pertained to the pleadings but also because the defendants denied liability in their answer.

Where a decision requires the exercise of discretion but fails to demonstrate on its face consideration of any factors on which the decision should be properly based, the decision constitutes an abuse of discretion as a matter of law. Maier Construction, Inc. v. Ryan, 81 Wis.2d 463, 473, 260 N.W.2d 700, 704 (1978). However, this court is required to uphold a discretionary decision of the trial court if, from the record, it can be concluded ab initio that there are facts of record which would support the trial judge's decision had discretion been exercised on the basis of those facts. Conrad v. Conrad, 92 Wis.2d 407, 415, 284 N.W.2d 674, 678 (1979).

The criteria for allowing withdrawal from an admission are set forth in the statute: "Any matter admitted under this statute is conclusively established unless the court on motion permits withdrawal or amendment of the admission ...." Sec. 804.11(2), Stats. A court may permit withdrawal or amendment of an admission when the "presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits." Id. (emphasis added).

The...