Vollmer v. Luety

• Decision Date: 26 June 1990
• Docket Number: No. 88-0092,88-0092
• Citation: 456 N.W.2d 797,156 Wis.2d 1
• Parties: Georgia Ann VOLLMER, Plaintiff-Appellant, United States Fidelity and Guarantee Company, a Maryland Company, Plaintiff, v. Paul LUETY and American Family Mutual Insurance Company, a Wisconsin Corporation, Defendants-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

Page 797

456 N.W.2d 797

156 Wis.2d 1

Georgia Ann VOLLMER, Plaintiff-Appellant United States Fidelity and Guarantee Company, a Maryland Company, Plaintiff, v. Paul LUETY and American Family Mutual Insurance Company, a Wisconsin Corporation, Defendants-Respondents-Petitioners.

No. 88-0092.

Supreme Court of Wisconsin.

Argued March 6, 1990.

Decided June 26, 1990.

Thomas F. Berg, on brief and Thomas F. Berg, argued, Janesville, for defendants-respondents-petitioners.

Edward Grutzner and Grutzner, Byron, Holland & Vollmer on brief and Edward Grutzner, argued, Beloit, for plaintiff-appellant.

HEFFERNAN, Chief Justice.

This is a review of a published court of appeals decision. Vollmer v. Luety, 150 Wis.2d 891, 443 N.W.2d 32 (Ct.App.1989). This case involves the scope of the court of appeals statutory discretionary reversal power under sec. 752.35, Stats. This court originally accepted the defendant's petition for review in this case on March 7, 1989, and remanded the case to the court of appeals with directions to reconsider its December 22, 1988 unpublished decision in light of this court's opinion in State v. Schumacher, 144 Wis.2d 388, 424 N.W.2d 672 (1988). On remand, the court of appeals reaffirmed its earlier decision which reversed the trial court's judgment entered on the jury's verdict dismissing the plaintiff's negligence complaint. The court of appeals reversed on the grounds that the real controversy in the case had not been fully tried, pursuant to sec. 752.35, Stats. The defendant now seeks review of the court of appeals decision which concluded that it had properly applied Schumacher in the original case.

We affirm the decision of the court of appeals, concluding that it properly applied State v. Schumacher, because the error which the plaintiff failed to preserve for appellate consideration by a proper objection, an allegedly deficient verdict question, appears from the record to have prevented the real controversy from being fully tried, and hence, under the provisions of sec. 752.35, Stats., it was within the court of appeals' statutory discretion to reverse the judgment and to remand for a new trial.

The underlying facts of this case are as follows. Plaintiff stated in her initial complaint that defendant was negligent in his operation of a large rotary mower when cutting tall grass along a roadside and that his negligence caused the mower to eject an asphalt chunk which smashed through the plaintiff's closed car window and struck the plaintiff's arm as she drove by in her car. Plaintiff submitted the following written request for special verdict questions to the court prior to trial.

1. Was the defendant, Paul Luety negligent immediately prior to and at the time of the injury to plaintiff, Georgia Ann Vollmer, on June 25, 1983?

2. Was such negligence of Paul Luety a cause of the injuries of Georgia Ann Vollmer?

3. What sum of money will fairly and reasonably compensate Georgia Ann Vollmer for damages sustained in the accident?

Although it was plaintiff's theory of the case that defendant was negligent in operating the power mower, the special verdict question given to the jury inquired only whether the defendant was negligent in the maintenance of his premises. The special verdict questions submitted to the jury were:

1. At the time of, or prior to the accident, was the defendant, Paul Luety, negligent in his maintenance of the premises in question?

2. Was the negligence of the defendant, Paul Luety, a cause of injury to the plaintiff?

3. At the time of, or prior to the accident, was the manufacturer of the mower used by Paul Luety negligent in the construction or design of said mower?

4. Was the negligence of the manufacturer of the mower operated by Paul Luety a cause of injury to the plaintiff?

The jury answered "no" to all of these questions.

In a post-trial motion, plaintiff requested that the trial court change these answers from "no" to "yes" because the trial judge had submitted an improper verdict question to the jury. Plaintiff stated that, instead of inquiring whether the defendant was negligent in the maintenance of his premises, the jury should have been asked whether the defendant was "negligent immediately prior to and at the time of the injury to plaintiff."

Defendant filed a brief in opposition to plaintiff's post-trial motion, claiming that plaintiff failed to object on the record to the special verdict question as required by sec. 805.13(3), Stats., at the instruction and verdict conference or at any other time.

Counsel for the plaintiff concedes and the record reflects that, while he objected to the jury instructions, he failed to object to the special verdict question which inquired whether the defendant was negligent in the maintenance of his premises, instead of negligent in the operation of the mower. In oral argument before this court, counsel for the plaintiff indicated that he was not aware at the time of the conference with the trial court that the special verdict question contained the "negligent in the maintenance of his premises" language, and that it was an oversight on his part that he failed to notice the language of the verdict question.

The trial court denied plaintiff's post-trial motion requesting either a change in the jury verdict or a new trial. Judgment was entered in favor of the defendant and plaintiff's complaint was dismissed. Plaintiff appealed.

The court of appeals, in an unpublished per curiam decision, reversed the trial court's judgment and remanded for further proceedings. Vollmer v. Luety, 148 Wis.2d 946, 437 N.W.2d 234 (Ct.App.1988). The court of appeals concluded that, although the plaintiff failed to object to the special verdict question submitted to the jury, as required under sec. 805.13(3), Stats., it could reverse the trial court's decision under its discretionary power of reversal under sec. 752.35, Stats., citing Clark v. Leisure Vehicles, Inc., 96 Wis.2d 607, 617, 292 N.W.2d 630, 635 (1980), because the real controversy had not been tried.

As stated above, defendants petitioned this court for review of the court of appeals' original 1988 decision. This court granted the petition, but remanded the matter to the court of appeals for further consideration in light of this court's decision in State v. Schumacher, 144 Wis.2d 388, 424 N.W.2d 672 (1988).

Pursuant to the directive of this court, the court of appeals, in a published decision, reconsidered its original decision and concluded that it was correct. It reinstated its mandate reversing the judgment appealed from and remanded the case for a new trial. Vollmer v. Luety, 150 Wis.2d 891, 443 N.W.2d 32 (Ct.App.1989).

The court of appeals set forth its interpretation of Schumacher. The court of appeals explained that, although this court stated in Schumacher that the court of appeals does not have common law discretionary power under the "integrity of the fact-finding process" line of cases to review unobjected-to errors in the instructions or verdict questions, it did not believe that the supreme court's decisions in either State v. Schumacher or State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985), intended to limit the power of either the supreme court or the court of appeals to reverse under secs. 751.06 and 752.35, Stats., when the real controversy had not been tried, to the two evidentiary circumstances described in Wyss. ¹ The court of appeals cited several opinions in which the supreme court reversed a decision on the grounds that the real controversy had not been fully tried in situations other than the two evidentiary situations mentioned in Wyss, including cases where counsel failed to object to a jury instruction or verdict question. The court of appeals then turned to the statutes which grant the supreme court and the court of appeals discretionary power to reverse judgments when the real controversy has not been fully tried or when it is probable that justice has for any reason miscarried. Secs. 751.06, Stats. (Discretionary reversal power of supreme court), and 752.35, Stats. (Discretionary reversal power of court of appeals). ² The court of appeals reasoned that, because the language of these two statutes is identical, the longstanding interpretation of sec. 751.06, Stats., became a controlling interpretive gloss on sec. 752.35, Stats. Accordingly, the court concluded that, under the discretionary reversal statutes, "the court of appeals, like the supreme court, has the power to conclude that the real controversy has not been tried in many situations in addition to the two described in Wyss." 150 Wis.2d at 904, 443 N.W.2d 32.

Finally, the court of appeals considered whether secs. 751.06 and 752.35, Stats., should be construed differently in light of the different functions assigned to the supreme court and the court of appeals. Because sec. 752.35 is tailored to doing justice between the parties in an individual case, the court of appeals concluded that it was not encroaching upon the law-developing or law-declaring function of the supreme court. Id. at 906, 443 N.W.2d 32.

Defendants have once again petitioned this court for review of the court of appeals decision. This court granted the petition to consider the scope of the court of appeals' power under the provisions of sec. 752.35, Stats., to reverse judgments.

Although plaintiff argues that the objection to the special verdict question was not waived because she objected to the jury instruction, as set forth above plaintiff concedes and the record reflects that plaintiff failed to object to the special verdict question which was submitted to the jury. This court concludes that plaintiff's objection to the jury instruction did not constitute an objection to the special verdict question submitted to the jury that would as a matter of right enable the plaintiff to review.

Because plaintiff failed to object to the special verdict question, the error, if any, is waived under sec....