Smith v. Rural Mut. Ins. Co.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBROWN
Citation123 N.W.2d 496,20 Wis.2d 592
Decision Date01 October 1963
PartiesCarol Ann SMITH, by gd'n ad litem, Wm. M. Hayes, Plaintiff-Respondent, v. RURAL MUTUAL INS. CO., a Wis. corporation, Appellant, Donald C. Foss, Impleaded Respondent.

Page 496

123 N.W.2d 496
20 Wis.2d 592
Carol Ann SMITH, by gd'n ad litem, Wm. M. Hayes, Plaintiff-Respondent,
v.
RURAL MUTUAL INS. CO., a Wis. corporation, Appellant,
Donald C. Foss, Impleaded Respondent.
Supreme Court of Wisconsin.
Oct. 1, 1963.

Rogers & Owens, Portage, for appellant.

Vaughn S. Conway and Kenneth H. Conway, Baraboo, for plaintiff-respondent.

Dithmar & Greenhalgh, Baraboo, for impleaded respondent.

BROWN, Chief Justice.

On appeal appellant raises these following issues:

(1) Whether there was credible evidence to sustain the jury's finding that a person other than respondent was driving the vehicle in which she was an occupant at the time of the accident.

(2) Whether sec. 48.38(1), Stats., prohibiting the admission in evidence against a child in another action of the disposition of such child's juvenile case, constitutes a denial of due process and equal protection of the law under federal and state constitutions.

(3) Whether certain rulings of the trial court as to the admissibility of evidence was proper.

(4) Whether the release executed between appellant, respondent, and impleaded respondent precluded contribution.

(5) Whether impleaded respondent was negligent as a matter of law.

(6) Whether certain statements to jury were improper warranting a new trial.

[20 Wis.2d 596] (7) Whether a new trial is warranted in the interests of justice.

(1) Sustaining the Jury's Findings. The collision occurred at the intersection of U.S. highway 12 and county trunk highway 'W', Sauk county, Wisconsin, about 10:00 p. m., August 30, 1959. The Thiede car, in which plaintiff was an occupant, was travelling west on county trunk 'W'. It had stopped at the intersection with highway 12 and was crossing the intersection in an attempt to make a left hand turn south on highway 12 when it was struck on the left side by the Foss car travelling north on highway 12.

The other occupants of the Thiede car were: Delbert Thiede, age seventeen, son of Ben Thiede; Russell Hankins, age sixteen; Naomi Markley, age sixteen; and Donald Marklein, a minor, who died of injuries.

The record shows that the evidence concerning who was driving the Thiede car is in conflict. On the day in question, Delbert Thiede had permission to use the Thiede car. Early in the afternoon he picked up Donald Marklein at Sauk City, and drove to Baraboo and picked up plaintiff-respondent Carol Ann and Naomi Markley with whom he and Marklein had dates. Thiede and Carol Ann rode in the front seat and Marklein and Naomi Markley were at all times in the back seat.

Page 500

Thiede drove to Sauk City, and after they attended a corn festival they stopped at the Caflisch Shell station about 7:00 p. m. where Russell Hankins joined them. Hankins sat in the front seat of the car.

It is undisputed that Thiede and Carol Ann took turns driving the car and that they were the only ones who drove it. Just prior to the accident Thiede drove to Baraboo and stopped at a Clark station where Marklein purchased some gas. The Clark station attendant, Gerald Collins, testified that Thiede was behind the steering wheel when the gas was [20 Wis.2d 597] purchased, and leaned over to put the Clark premium stamps he had received into the glove compartment. He did not see anyone moving around the left side of the car.

Carol Ann and Naomi Markley testified that Thiede drove the car from the Clark station to the intersection where the car was stopped before entering the junction with highway 12. Miss Markley remembered nothing further.

Carol Ann remembered Thiede putting the car in gear at the stop sign and remembered nothing further until she came to at the hospital. At the trial she was confronted with a statement recorded by an insurance adjuster and signed by her on September 9, 1959, in the hospital, which states:

'The last thing I remember is asking Delbert if I could drive the car. He consented and I remember exchanging seats with him and getting behind the steering wheel. The next thing I can remember is coming to in this hospital room, a day or so later after the accident.'

Delbert Thiede did not remember who was driving at the time of the accident, but testified he was sitting in the middle of the front seat at that time. He testified that respondent must have been driving because he never let anyone else drive.

Russell Hankins did not remember who was driving the car at other times during the evening, but testified that Carol Ann was driving when the car left the stop sign and proceeded into the intersection.

Based on the testimony the jury found that someone other than respondent was driving the Thiede car. Appellant, however, considers that this finding is not supported by any credible evidence in the record.

In connection with the finding of the jury that respondent was not driving, appellant considers it error for the trial court not to have instructed the jury concerning the weight given to positive and negative testimony.

[20 Wis.2d 598] The testimony of Russell Hankins pertaining to the driver of the Thiede car, although positive in form, is very weak in substance. Hankins had no recollection of who was driving the car during other periods of the evening. His testimony also contains many other complete lapses of memory concerning his activity of that day and evening. At one point during his testimony the court, without the presence of the jury, admonished him because it was of the opinion that he was not telling the truth. In its assessment of the testimony of Hankins, the court said:

'The witness Hankins was obviously not too intelligent. There was reason to believe that he might even be mentally retarded. In his testimony he was unable to state who was driving at any time during the entire afternoon or evening except that he placed Carol Ann Smith as driving at the moment of the accident. The Court felt that he based this statement more on the fact that the car jumped a little when it was engaged in gear than upon any observation that he actually made. In view of his obvious mental condition and in view of his inability to remember who was driving at any other time that day, the Court does not feel that his testimony is so much more credible than that of the other witnesses as to

Page 501

require a change of the answers on that ground alone. * * *'

Assuming that the testimony of Hankins was equally credible to that of the negative testimony, the failure of the court to give the proper instruction would technically be error; however, it would not be grounds for a new trial unless it was prejudicial. Sec. 274.37, Stats. In view of the weak nature of the positive testimony this error cannot be considered prejudicial to appellant.

On appeal we accept that version of the evidence that is most favorable to the prevailing party. Mustas v. Inland Construction, Inc. (1963), 19 Wis.2d 194, 201, 120 N.W.2d 95, 121 N.W.2d 274. Assuming the credibility of the testimony of Carol Ann, Naomi Markley, and [20 Wis.2d 599] Gerald Collins, a reasonable inference can be drawn that respondent was not driving the Thiede car at the time of the accident. Therefore, the verdict of the jury is clearly supported by credible evidence in the record.

(2) Validity of sec. 48.38(1), Stats. At the conclusion of the cross-examination, respondent was asked if as a result of the accident her driver's license was suspended. She answered 'Yes.' No objection to the question was made, but after several questions on redirect examination, objection was made. The trial court ruled the question improper, struck the question and answer from the evidence, and instructed the jury to disregard the question and answer.

The question and answer concerning the revocation of respondent's driver's license were struck pursuant to sec. 48.38(1), Stats., which provides:

'No adjudication upon the status of any child in the jurisdiction of the juvenile court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any such child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction. The disposition of any child's case or any evidence given in the juvenile court shall not be admissible as evidence...

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23 practice notes
  • State v. Gustafson, No. 81-2015-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • September 4, 1984
    ...while it is exercising the jurisdiction of a family court and is considering the custody of children." In Smith v. Rural Mut. Ins. Co., 20 Wis.2d 592, 123 N.W.2d 496 (1963), we discussed the policies behind the enactment of sec. 48.38(1), Stats. 1963, which contained language similar to cur......
  • Caldwell v. Piggly-Wiggly Madison Co., PIGGLY-WIGGLY
    • United States
    • United States State Supreme Court of Wisconsin
    • November 1, 1966
    ...parties was in fact prejudiced by the error. Roeske v. Schmitt (1954), 266 Wis. 557, 64 N.W.2d 394; Smith v. Rural Mut. Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d 496. There must be some affirmative evidence of prejudice. Here we see no such evidence. The fact of insurance coverage, if prej......
  • Pagel v. Kees
    • United States
    • United States State Supreme Court of Wisconsin
    • April 28, 1964
    ...514; Travelers Indemnity Co. v. Home Mutual Ins. Co. (1961), 15 Wis.2d 137, 111 N.W.2d 751; and Smith v. Rural Mutual Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d...
  • Shaw v. Wuttke
    • United States
    • United States State Supreme Court of Wisconsin
    • November 2, 1965
    ...v. Bryan (1944), 244 Wis. 359, 12 N.W.2d 789. This testimony does not fall within the rule of Smith v. Rural Mut. Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d 496. Rossow v. Lathrop (1963), 20 Wis.2d 658, 123 N.W.2d 523, where we held a police officer could not testify to any facts in a traff......
  • Request a trial to view additional results
23 cases
  • State v. Gustafson, No. 81-2015-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • September 4, 1984
    ...while it is exercising the jurisdiction of a family court and is considering the custody of children." In Smith v. Rural Mut. Ins. Co., 20 Wis.2d 592, 123 N.W.2d 496 (1963), we discussed the policies behind the enactment of sec. 48.38(1), Stats. 1963, which contained language similar to cur......
  • Caldwell v. Piggly-Wiggly Madison Co., PIGGLY-WIGGLY
    • United States
    • United States State Supreme Court of Wisconsin
    • November 1, 1966
    ...parties was in fact prejudiced by the error. Roeske v. Schmitt (1954), 266 Wis. 557, 64 N.W.2d 394; Smith v. Rural Mut. Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d 496. There must be some affirmative evidence of prejudice. Here we see no such evidence. The fact of insurance coverage, if prej......
  • Pagel v. Kees
    • United States
    • United States State Supreme Court of Wisconsin
    • April 28, 1964
    ...514; Travelers Indemnity Co. v. Home Mutual Ins. Co. (1961), 15 Wis.2d 137, 111 N.W.2d 751; and Smith v. Rural Mutual Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d...
  • Shaw v. Wuttke
    • United States
    • United States State Supreme Court of Wisconsin
    • November 2, 1965
    ...v. Bryan (1944), 244 Wis. 359, 12 N.W.2d 789. This testimony does not fall within the rule of Smith v. Rural Mut. Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d 496. Rossow v. Lathrop (1963), 20 Wis.2d 658, 123 N.W.2d 523, where we held a police officer could not testify to any facts in a traff......
  • Request a trial to view additional results

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