Schneck v. Mutual Service Cas. Ins. Co.

• Decision Date: 28 April 1964
• Citation: 128 N.W.2d 50,23 Wis.2d 649
• Parties: Sandra SCHNECK, a minor, by Walter A. Graunke, her gdn. ad litem, et al., Respondents, v. MUTUAL SERVICE CASUALTY INS. CO., a foreign insurance corporation, Appellant. Lynette TOWLE, by Leo D. Crooks, her gdn. ad litem, et al., Respondents, v. MUTUAL SERVICE CASUALTY INS. CO., a foreian insurance cornoration, Appellant. Patricia BRANDT, by her gdn. ad litem, Jerome A. Maeder, et al., Respondents, v. MUTUAL SERVICE CASUALTY INS. CO., a foreign insurance corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 50

128 N.W.2d 50

23 Wis.2d 649

Sandra SCHNECK, a minor, by Walter A. Graunke, her gdn. ad

litem, et al., Respondents, v. MUTUAL SERVICE CASUALTY INS. CO., a foreign insurance

corporation, Appellant.

Lynette TOWLE, by Leo D. Crooks, her gdn. ad litem, et al.,

Respondents, v. MUTUAL SERVICE CASUALTY INS. CO., a foreian insurance

cornoration, Appellant.

Patricia BRANDT, by her gdn. ad litem, Jerome A. Maeder, et

al., Respondents, v. MUTUAL SERVICE CASUALTY INS. CO., a foreign insurance

corporation, Appellant.

Supreme Court of Wisconsin.

April 28, 1964.

Smith, Puchner, Tinkham & Smith, Wausau, for appellant.

Kelley & Maeder, Wausau, for Brandt.

Walter A. Graunke, Wausau, for Schneck.

Crooks & Crooks, Wausau, for Towle.

BEILFUSS, Justice.

The principal issues are:

1. Is there sufficient credible evidence to sustain the verdict?

2. Was argument to the jury by plaintiffs' counsel so improper as to require a new trial?

Sufficiency of the Evidence

The factual situation as it appears in the record before us is essentially the same as reported in the first appeal. Briefly stated, the facts are: The plaintiff, Patricia Brandt, is the minor daughter of Frank Brandt. In July of 1959, Patricia, then sixteen years old, received a temporary driving permit. In August of 1959, she received a driver's license. During the time she had only the permit it is clear that both her father and her mother frequently told her she was not to allow any other person to drive the car. The accident happened some nine months after Patricia had a driver's license. The record is not entirely clear as to the instructions given to her after she received her license.

After she had her license Patricia drove the car without her parents present about three or four times per week. On many of these occasions one or more of the minor plaintiffs would be with her, which fact was known to Frank Brandt. Several times Frank Brandt stated in the presence of Patricia and the other girls, 'you girls drive careful, treat the car as if it were your own,' or words to that effect.

Patricia acknowledged that during the permit period she was told several times not to let others drive the car but stated those restrictions were not repeated to her after she received the driver's license and that she thought the only admonition was to be careful and drive carefully.

It further appears that at no time did Frank Brandt specifically tell Patricia that it would be alright for others to drive. Patricia did not tell him that others were driving the car, although that was a fact, nor did he know Patricia was allowing others to drive.

Howard Johnson, an adjuster employed by the defendant insurance company, interviewed Mr. and Mrs. Brandt and Patricia shortly after the accident and took statements from them. The statements prepared by Mr. Johnson and signed by Brandt indicate that Brandt, on many occasions, instructed Patricia that she was not to allow others to drive. Neither Brandt nor his wife recall that she was so instructed on the day of the accident.

The testimony of Mr. Piehler, an attorney consulted by Mr. Brandt, and Mr. Peterson, an insurance adjuster for another company, corroborate the statements taken by Johnson but neither of them refer specifically to the instructions given to Patricia on the day in question.

In our first opinion ¹ we stated (pp. 575, 576 of 18 Wis.2d, pp. 347, 348 of 119 N.W. 2d):

'The jury apparently took the plaintiffs' view of the evidence. The finding might be inferred from the evidentiary facts that the last time Patricia Brandt was told not to let others drive the car was during her learning period some nine months before the accident, that she had driven the car 30 or 40 times for her own pleasure without any express restrictions, she had been told to treat the car as her own, and on occasions Brandt had stated his daughter could use the car or 'you girls can use the car' but he wanted the girls to drive carefully. The defendant argues it is conceded Patricia had no express permission to permit others to drive her father's car and while he advised his daughter to treat the car as her own, this only meant that she should be careful. It is common knowledge a minor takes better care of his own property than he does of another's. There is evidence of the existence of an understanding of no permission and a conflict over the duration of the understanding.

'An issue was thus created of whether the course of conduct and the other circumstances which existed between the father and the daughter were such that, when on the day of the accident Mr. Brandt gave permission to his daughter to use the car, such permission was impliedly limited in that she was not to allow others to drive. We agree with the trial court that a jury issue was present. The defendant's motions for directed verdict and to dismiss were properly denied.'

While the greater weight of the evidence can easily if not irresistibly lead us to the conclusion that Brandt did not give implied permission to Patricia to allow others to drive, the law of the case is that the facts create a jury issue. ² Rules needing no citation are that credibility of witnesses and the weight of their testimony as a whole is for the jury, and that if there is any credible evidence which supports the verdict it must be sustained.

A comprehensive discussion of rules of implied permission appear in Krebsbach v. Miller (1963), 22 Wis.2d 171, 125 N.W.2d 408.

The statement 'you girls can use the car' but be careful, and lack of evidence of restrictive instructions on the day in question, together with uncertainty as to instructions to Patricia after she received her driving license and her testimony as to her understanding that the instruction not to let other drive did not apply after she had her license constitute sufficient credible evidence. The jury could draw the inference that there was no implication that Patricia was not to permit others to drive on the day in question.

The juries in both cases resolved the issue in favor of the plaintiffs. We cannot as a matter of law set aside that finding.

Arguments of Counsel

The defendant contends that the argument of Mr. Maeder and Mr. Graunke on behalf of the plaintiffs were improper, grossly prejudicial and inflammatory; that they affected the jury and that a new trial should be ordered because of these arguments.

The arguments objected to generally refer to the defendant insurance company and its adjuster, Mr. Johnson. It is the position of the plaintiffs that they had a right to attack the credibility of Mr. Johnson as an agent of an interested party and his methods and motives in obtaining the statements from Mr. and Mrs. Brandt and Patricia. It is their contention that Mr. Johnson's purpose was to obtain only such information as would negate permission.

Mr. Maeder stated to the jury in connection with the statement of Patricia:

'Now let's remember this little girl, young girl in a cast from a terrible accident--one of her girl friends killed in the accident. She hadn't thought about it for a month, lying there with one arm fractured, right leg fractured and both wrists broken----'

Excerpts from Mr. Graunke's argument, objections and statements of the court are:

'Now I'll tell you the crux of this whole case, who has got the financial interest in this case, and I have a right to use it because they offered this Exhibit C in evidence. The financial interest in this case is on the part of the insurance company.

'MR. TINKHAM: Object to this line of argument. I think it is entirely improper. It doesn't bear upon the issues and it is prejudicial and improper.

'THE COURT: The insurance company was not a witness in the case.

'MR. GRAUNKE: But their exhibit is in and it was received and the statement, the amount of the policy coverage. I would like my time taken out.

'THE COURT: You will have plenty of time without this time.

'MR. TINKHAM: I point out to you the statement you are referring to is the statement taken by Mr. Peterson of Home Mutual.

'MR. GRAUNKE: But it's your exhibit, you offered it.

'THE COURT: A statement signed by Mr. Brandt that you are referring to?

'MR. GRAUNKE: But he offered it.

'THE COURT: Proceed. The court takes this opportunity to instruct the jury that whether an insurance company is a party to this action or not is entirely immaterial. You have your duty to perform without regard to the persons who are parties to the action. Proceed, Mr. Graunke.

'MR. GRAUNKE: We respectfully submit that the defendant insurance company is a party to this action and has a greater financial interest than anybody involved in this case, all three of the girls put together. * * * That is the only answer you can give under the facts of this case in my opinion. That is 'Yes,' and show to this defendant once and for all that we have intelligent jurors in Marathon county that aren't going to be bam-boozled by the hocus-pocus of insurance adjusters. In all my life and years of experience as an attorney at law and they are more years of experience as an attorney at law and they are more years of experience than any attorney seated at the counsel table here today and all the many years I have practiced law as Marathon county district attorney, and in my many years of the practice of the law, never in my opinion have I seen a case that so chills the marrow of the bones of anyone who believes in justice and fair play. They really tried to take Frank Brandt for a real good ride, these insurance adjusters. Listen to this--this is in the record. On cross-examination of Mr. Howard Johnson I asked him the following question and he made the following answer: 'In other words, to make a long story short, Mr. Johnson, your whole purpose of this questioning of Miss Patricia Brandt was to work out a record to show that there was no coverage in this case; isn't that right? A. That was part of it, yes.' He admitted when he answered that...