Schmorrow v. Sentry Ins. Co., 85-1950
Decision Date | 04 March 1987 |
Docket Number | No. 85-1950,85-1950 |
Citation | 138 Wis.2d 31,405 N.W.2d 672 |
Parties | Fred SCHMORROW, Plaintiff-Respondent, v. SENTRY INSURANCE COMPANY, a mutual insurance company, a domestic insurance corporation, Defendant-Respondent, Eagle Star Insurance Company of America, a foreign insurance corporation, Defendant-Appellant. |
Court | Wisconsin Court of Appeals |
James A. Pitts and Jeffrey Leavell of Capwell, Berthelsen, Nolden, Casanova, Pitts & Kallenbach, Ltd., Racine, for defendant-appellant.
John V. O'Connor of O'Connor & Warren, S.C., Kenosha, for plaintiff-respondent.
Robert F. Johnson and Philip C. Reid of Cook & Franke, S.C., Milwaukee, for defendant-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Eagle Star Insurance Company of America and Sentry Insurance Company were the defendants in a direct action negligence suit brought by Fred Schmorrow. Eagle Star appeals from the judgment granting Sentry's post-verdict motion for directed verdict and reapportioning the negligence assigned by the jury. Because the trial court lost competency to decide the motions after verdict and because we conclude that the interest of justice does not require that the jury verdict be set aside, we reverse that portion of the judgment. Eagle Star also claims error in the denial of its own motion for directed verdict and in the trial court's Safe Place Statute instruction. We affirm as to these issues and hold that the Kenosha Elks Club qualified as an employer under the Safe Place Statute.
On May 12, 1983, Fred Schmorrow was injured while exiting an elevator in the Kenosha Elks Club, where he had lived for about ten years. He was seventy-five years old. He claimed that he had ridden the elevator from the lobby to the third floor where his room was, that the doors opened normally, and that in attempting to step out he failed to realize that the elevator had stopped almost a foot above floor level. Schmorrow fell, seriously injuring his right shoulder.
Schmorrow brought this action against Eagle Star, the insurer of the Kenosha Elks Club, and Sentry, the insurer of the Wisconsin Elevator Corporation. He claimed that Wisconsin Elevator negligently designed, installed and maintained the elevator and that the Elks Club negligently maintained both a place of employment and a public building. For clarity's sake, we will refer to each insurer by the name of its insured unless the context otherwise requires.
On March 28, 1985, after a lengthy trial, the jury returned a special verdict apportioning the causal negligence as follows: sixty percent to Kenosha Elks Club; thirty percent to Wisconsin Elevator; and ten percent to Schmorrow. The jury awarded a gross verdict of $315,586.35.
Motions after verdict were heard on May 16, 1985. By a decision entered August 27, 1985, the trial court granted Wisconsin Elevator's motion for directed verdict, reassigned the thirty percent causal negligence from Wisconsin Elevator to the Elks Club, and awarded judgment in the amount of $284,027.40, ninety percent of the gross verdict, against the Elks Club. Judgment was entered on September 13, 1985, and an amended judgment was entered on December 17, 1985.
The Elks Club claims first that the trial court's decision on motions after verdict was of no legal effect because it was entered more than ninety days after verdict and no order extending the time for deciding the motions was entered before the expiration of the ninety days. See secs. 805.16 and 801.15(2)(b), Stats. 1 We agree.
The trial court belatedly attempted to satisfy the statutory time requirements by ordering an extension of time on August 20, 1985. Recognizing that sec. 805.16, Stats., would have required a decision to be entered by June 28, 1985, and noting that at the May 16 motion hearing the parties had not objected to an extension of time, the court ordered a ninety-day extension of time, nunc pro tunc as of June 28, 1985.
However, although the trial court stated an intent to order an extension at the hearing on May 16, 1985, 2 it did not enter such an order prior to the expiration of the original ninety days. Nunc pro tunc entry is an entry made now of something actually previously done, to have the effect of the former date. Black's Law Dictionary 964 (5th ed. 1979) (citing Seabolt v. State, 357 P.2d 1014, 1016 (Okla.Crim.App.1960)). Its office is not to supply omitted action, but to rectify an inadvertent or mistaken omission in the record of an action actually taken. Id. A court's nunc pro tunc authority is limited to rectifying what might be termed mechanical errors; it is appropriately exercised to conform an order or judgment to that actually pronounced. Strawser v. Strawser, 126 Wis.2d 485, 490, 377 N.W.2d 196, 199 (Ct.App.1985).
Here, had the court orally ordered an extension before the expiration of the ninety-day period, its subsequent nunc pro tunc order might have been valid. The court, however, did not orally order such an extension but merely indicated its intent to put together an order in the future. There being no order actually pronounced to which the subsequent order could be made to conform, see id., the August 20 order did not validly extend the period for decision.
Wisconsin Elevator contends that the court's actions represented substantial compliance with secs. 801.15(2)(b) and 805.16, Stats. However, strict compliance with procedural statutes is necessary. Trojan v. Board of Regents, 104 Wis.2d 277, 284, 311 N.W.2d 586, 589 (1981). This must be particularly true when procedural rules affect the court's jurisdiction or competency to act. See, e.g., Graf v. Gerber, 26 Wis.2d 72, 74-76, 131 N.W.2d 863, 865 (1965) ( ). Loss of competency to proceed necessarily depends on a date certain; extensions of that date must therefore be based on an unequivocal and precise action by the trial court.
The expiration of the ninety-day time limit deprived the trial court of competency to exercise its jurisdiction to decide the motions after verdict. Jos. P. Jansen Co. v. Milwaukee Area Dist. Bd., 105 Wis.2d 1, 10, 312 N.W.2d 813, 817 (1981). Pursuant to sec. 805.16, Stats., the motions should have been deemed denied. Id. at 8, 312 N.W.2d at 816.
We, then, proceed on the basis that the motions after verdict are deemed denied, but we review the record to determine whether, in the interest of justice, we should invoke our power under sec. 752.35 Stats., to accomplish the result the trial court attempted to accomplish as to Wisconsin Elevator. Id. at 10, 312 N.W.2d at 817.
The trial court granted Wisconsin Elevator's motion for directed verdict, holding there was no credible evidence supporting the jury's determination that Wisconsin Elevator was causally negligent. Section 805.14(1), Stats., sets forth the standard governing the granting of a motion challenging an answer in a verdict or the sufficiency of the evidence as a matter of law to support a verdict. The motion shall not be granted:
unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
Id. While not overwhelming, we conclude that sufficient evidence was presented to make Wisconsin Elevator's causal negligence a jury question.
Wisconsin Elevator installed the elevator in the late 1960s and contracted with the Elks Club to maintain and service the elevator. The jury heard testimony regarding the history of faulty performance of the elevator, particularly in the six months preceding the accident. Witnesses told of incidents involving leveling problems and the elevator's stopping between floors. A jury acting reasonably could conclude that Wisconsin Elevator merely patched up the immediate malfunctions without ever coming to grips with diagnosing the real problem.
In addition, Schmorrow presented evidence that the cam bar involved in the elevator's door-opening sequence was of a length which, although not violating any state regulation or industry standard, was unnecessary on a two-speed elevator such as this. 3 This cam bar would allow the door to open when the elevator was higher above the floor than would the shorter cam bar more commonly used, in the witness' experience, on this type of elevator. Compliance with industry custom does not establish due care as a matter of law. Fischer v. Cleveland Punch & Shear Works Co., 91 Wis.2d 85, 97, 280 N.W.2d 280, 286 (1979). A jury acting reasonably could have concluded that the cam bar installed by Wisconsin Elevator was unnecessarily long, creating an unsafe condition which contributed to the severity of Schmorrow's injury when the elevator failed to stop properly at floor level.
There is sufficient credible evidence to make Wisconsin Elevator's negligence a jury question. Therefore, we are not compelled in the interest of justice to vacate the jury's verdict on this issue. We reverse the portion of the judgment dismissing Wisconsin Elevator from the action and reapportioning its negligence to the Kenosha Elks Club. 4
The Elks Club contends next that the trial court should have granted its motion for directed verdict. 5 We conclude that sufficient credible evidence supports the jury's finding of sixty percent causal negligence attributable to the Kenosha Elks Club.
The Elks Club was responsible for maintenance of the building, including areas containing the elevator machinery. The jury heard testimony that when the Wisconsin Elevator service mechanic arrived in response to a call the day after the accident he found the door to the rooftop elevator machine...
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