Shaw v. Wuttke

• Decision Date: 02 November 1965
• Parties: Michael William SHAW, a minor by his guardian ad litem George A. Schmus, and Robert W. Shaw, Plaintiffs-Respondents, v. Virgil Philip WUTTKE and American Family Mutual Insurance Company, a Wisconsin corporation, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 649

137 N.W.2d 649

28 Wis.2d 448

Michael William SHAW, a minor by his guardian ad litem George A. Schmus, and Robert W. Shaw, Plaintiffs-Respondents, v. Virgil Philip WUTTKE and American Family Mutual Insurance

Company, a Wisconsin corporation, Defendants-Appellants.

Supreme Court of Wisconsin.

Nov. 2, 1965.

Giffin, Smiarski & Kock, Milwaukee, E. J. Simarski, Milwaukee, of counsel, for defendant-appellants.

Kivett & Kasdorf, Milwaukee, Alan M. Clack and James P. Reardon, Milwaukee, of counsel, for plaintiffs-respondents.

HALLOWS, Justice.

In considering it had erred in giving the emergency-doctrine instruction the trial court reasoned the defendant was negligent in the management and control of his car, which negligence contributed to the creation of the emergency. In reaching this conclusion the trial court assumed the plaintiff was riding his bicycle at a speed of five miles per hour and reasoned that at that rate the plaintiff would take tow and a half seconds to travel from his position in the alley where he was first seen by the defendant to the point of impact in the street and the defendant going 20 miles an hour, which he testified was his speed, must have then been some 70 feet from the alley and could have stopped his car in 47 feet. This version of the evidence might be taken by the trier of the facts, but to hold this as a matter of law the rest of the evidence must not be sufficient to sustain a contrary view. There was, however, credible evidence which would support the view the defendant was much closer to the alley when the plaintiff came out of the alley into the street without stopping.

There is no basis for assuming the plaintiff was traveling only five miles an hour in view of the testimony of the plaintiff, the defendant, and other witnesses that the plaintiff was traveling fast. The alley was downgrade and the plaintiff was trying to catch up with his friend who was ahead of him on his bicycle. We think the jury could ascribe more weight to the testimony of the plaintiff's speed than the trial court did. It was undisputed the plaintiff came out of the alley on his bicycle fast or very fast, that he could not be seen from the street south of the alley until he emerged from a hedgerow which extended along the south edge of the alley to a point two and a half feet east of the sidewalk or 6 or 8 feet from the curb.

The defendant testified he did not put his brakes on until the time of impact because it all happened so fast he was not able to apply his brakes sooner. There were skid marks starting beyond the point of impact and the defendant's car came to a stop some 46 feet beyond the point of impact which would be approximately correct if he was going 20 miles an hour. It is true, the defendant gave several versions of his speed as being 15, 20 and even 25 miles per hour and there are other discrepancies in his testimony but these are for the jury to resolve.

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.2d 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. Misiewicz v. Waters (1964), 23 Wis.2d 512, 127 N.W.2d 776. If, however, it can be held a person was negligent as a matter of law and such negligence contributed to the emergency, then such person is not entitled to the emergency-doctrine instruction. Under the facts the time element, at the most 2 and a half seconds and more probably less, was short enough to apply the doctrine if the defendant was not negligent, or if so, such negligence did not contribute to the emergency. We think the trial court was in error in holding on motions after verdict that as a matter of law the defendant was negligent and such negligence contributed to the emergency and, therefore, it should not have given the emergency-doctrine instruction.

Since the order granting a new trial must be reversed, it is unnecessary to consider the plaintiff's appeal that the new trial should include the issue of damages because, the plaintiff having been found guilty of negligence exceeding 50 percent, any question concerning damages is academic.

The petition for review to sustain the order granting a new trial assigns as error the trial court's ordering the plaintiff's attorney to produce a prior-signed-written statement of a witness so that defendant's counsel could use it for impeachment purposes. The plaintiff had examined as his witness one Susan Bast who stated in substance that at the time she saw the plaintiff coming out of the alley into the street the defendant's automobile was just coming past the north side of the third house south of the alley. On cross-examination she was asked if she had given a written statement to one of the plaintiff's trial attorneys sometime prior to trial. Upon her giving an affirmative answer, the court ordered the statement to be produced and it was used by defendant's counsel in his cross-examination. This statement was to the effect the witness was not sure how far the defendant's car was south of the alley when she saw the plaintiff come into the street from the alley.

It is claimed this statement was part of the attorney's work product, that it was not evidence in the case because the witness was not a party, and that the witness was not shown to have refreshed her recollection with the statement and, therefore, was privileged from disclosure. We do not think it is important that the witness did not use the statement to refresh her memory or that it was not independent evidence because the statement was used only for impeachment. The plaintiff relies on Lehan v. Chicago & N. W. R. Co. (1919), 169 Wis. 327, 172 N.W. 787. ¹ However, recently this court has modified the rule announced in the Lehan Case without deciding the exact extent of immunity from disclosure afforded to the 'work product of the lawyer.'

The problem generally arises because of the enlarged scope of sec. 326.12, Stats. allowing discovery examination of persons who are not parties to the action. In State ex rel. Reynolds v. Circuit Court (1961), 15 Wis.2d 311, 112 N.W.2d 686, 113 N.W.2d 537, we dealt with the problem of privileged communication and work product and pointed out that pretrial discovery under sec. 326.12 might be used to reach certain information or relevant opinions formed by an expert witness. In Jacobi v. Podevels (1964), 23 Wis.2d 152, 127 N.W.2d 73, we held a statement given by an assured to his insurance carrier at a time when no action had been commenced or was imminent was not an attorney's work-product or a confidential communication and overruled the Wojciechowski Case in respect to the confidentiality of such a statement by an insured to his insurer. In Merlino v. Mutual Service Casualty Ins. Co. (1964), 23 Wis.2d 571, 127 N.W.2d 741, we held that where opposing counsel had obtained the production of and used a witness' priorwritten statement for impeachment purposes, it was not error for the court not to admit the entire statement in evidence at the request of counsel who had produced the statement. In the footnote in the opinion, the court cited Kurz v. Collins (1959), 6 Wis.2d 538, 95 N.W.2d 365, and the Jacobi Case for the proposition that opposing counsel had a right to the production of the witness' prior-written statement for impeachment purposes. The facts of these cases, however, did not involve an attorney's work product but statements given to an insurance company by their insured.

The work-product-of-a-lawyer concept had its origin in Hickman v. Taylor (1947), 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, which dealt with an interpretation of Rule 26 of the Federal Rules of Civil Procedure for the taking of depositions of persons not a party to the action. The Hickman Case held that the federal rule did not contemplate compelling an attorney to produce his work product which included written statements by witnesses because such an attempt fell 'outside the arena of discovery and contravenes [the] public policy underlying the orderly prosecution and defense of legal claims.' The court pointed out the immunity was not without limitations.

Most of the cases have dealt with work product in relation to pretrial discovery and the policy reasons for protecting a lawyer's work product at that time are not so compelling as to require its protection at the trial. One must distinguish the case of a prior-written statement given by a witness to counsel in the course of his preparation for trial and communications given in an attorney-client relationship which privilege extends throughout the trial. Only a few cases have been found, and they are based on a more restrictive discovery statute than ours, which allow the immunity of a lawyer's work product to exist after the commencement of trial in respect to prior statements of a witness. See Anno., Discovery--Statements of Witnesses, 73 A.L.R.2d 12. We hold the immunity of the attorney's work product in respect to a written statement ceases to exist when the person making the statement is placed on the stand as a witness at the trial. By becoming a witness the person subjects himself to the risks of impeachment and the attorney has had the benefit of his work product.

The plaintiff contends it was error to admit in evidence statements relating to the speed of the plaintiff on his bicycle. Several...