Vollmer v. Luety

• Decision Date: 11 May 1989
• Docket Number: No. 88-0092,88-0092
• Citation: Vollmer v. Luety, 150 Wis.2d 891, 443 N.W.2d 32 (Wis. App. 1989)
• Parties: Georgia Ann VOLLMER, Plaintiff-Appellant, d United States Fidelity and Guarantee Company, a Maryland Company, Plaintiff, v. Paul LUETY, and American Family Mutual Insurance Company, a Wisconsin Corporation, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 32

443 N.W.2d 32

150 Wis.2d 891

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

No. 88-0092.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 7, 1988.

Opinion Released May 11, 1989.

Opinion Filed May 11, 1989.

Edward Grutzner, on the briefs and Grutzner, S.C., Byron, Holland & Vollmer, Beloit, for plaintiff-appellant.

Thomas F. Berg, on the brief, Janesville, for defendants-respondents.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

GARTZKE, Presiding Judge.

On December 22, 1988, in an unpublished per curiam opinion, we reversed a judgment dismissing the plaintiff's complaint against the defendant and his insurer and remanded the matter for further proceedings, 148 Wis.2d 946, 437 N.W.2d 234. The defendants petitioned the supreme court for review. The supreme court granted the petition and remanded the matter to us "for further consideration in light of this court's decision in State v. Schumacher, 144 Wis.2d 388, 424 N.W.2d 672 (1988)." We have done so, and we conclude that our original decision was correct. For that reason, we reinstate our mandate reversing the judgment appealed from and remanding the matter.

The facts are as follows. Defendant Luety was cutting grass on his property along a highway when his mower ejected an asphalt chunk which struck plaintiff Vollmer as she rode by in a car. The special verdict question on liability, answered "no" by the jury, asked whether Luety was negligent in maintaining his premises. The trial court refused to submit Vollmer's proposed question which asked whether Luety was negligent immediately prior to or at the time of Vollmer's injury. On appeal, we concluded that the real controversy had not been tried, and we reversed and remanded for a new trial on liability.

We reasoned as follows: Vollmer had alleged in her complaint and submitted evidence at trial to show that Luety's negligent operation of the mower caused her injury. By asking whether Luety negligently maintained the premises, the court focused the jury's attention on the physical condition of the roadside, not on Luety's conduct at the time of the accident. We concluded that whether Luety was liable in the manner alleged by Vollmer had not been tried. Although Luety claimed that Vollmer did not properly object to the verdict, we concluded that any such waiver did not prevent us from exercising our 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).

Clark was an action for personal injury sustained by the plaintiff in a snowmobile accident. The theory of the plaintiffs was strict liability and ordinary negligence in the design of the snowmobile. Following a jury trial, a judgment was entered on the verdict dismissing the complaint on its merits, and the plaintiffs appealed. Plaintiffs contended that the special verdict was defective because it asked whether defendant's negligence was "the cause" of the plaintiff's injuries, rather than "a substantial factor" or "a cause." In an unpublished opinion, we reversed the judgment in part and remanded for a new trial on the issues of liability and negligence. Id. at 609, 292 N.W.2d at 631.

On review, the supreme court affirmed. Although the plaintiffs had waived the defective verdict by failing to object at the instruction conference, the Clark court held that "the failure to make a timely assertion of error does not preclude this court from considering the issue of the defect in the verdict" under its discretionary power in sec. 751.06, Stats. Id. at 616-17, 292 N.W.2d at 635. The court held,

The jury did not have an opportunity to answer the question as to whether the negligence of Leisure Vehicles was a cause of Christopher's injuries. The deliberations of the jury, when answering question 8, were not aided by the instructions, because an affirmative answer to the question would have required the jury to disregard the instruction on causation. Thus, we conclude the real issues in this case have not been fully tried and, pursuant to sec. 751.06, Stats., the case is remanded to the circuit court for a new trial on the issue of negligence as between the plaintiffs and Leisure Vehicles.

Id. at 620, 292 N.W.2d at 636.

Schumacher dealt with the power of the court of appeals to review unobjected-to errors in the instructions and the verdict as well as the power of the court of appeals to reverse under sec. 752.35, Stats. Section 752.35 is the counterpart of sec. 751.06, Stats., which describes the supreme court's power of discretionary reversal. ¹ The Schumacher court held that sec. 805.13(3), Stats., which provides that "[f]ailure to object at the [instruction] conference constitutes a waiver of any error in the proposed instructions or verdict," eliminated the common-law exceptions to the waiver rule and therefore the court of appeals no longer possesses a discretionary power to review unobjected-to errors in the instructions or verdict. 144 Wis.2d at 401-02, 407-408, 424 N.W.2d at 677, 679. The Schumacher court also held, however, that the court of appeals retains its discretionary power of reversal under sec. 752.35, as interpreted by State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985). Schumacher, 144 Wis.2d at 408, 424 N.W.2d at 680.

Earlier in its opinion, the Schumacher court said

Over the course of this statute's life [referring to sec. 752.35, Stats.], this court has often been called upon to interpret the scope of the discretionary-reversal power granted to both this court and to the court of appeals. As was summarized in the recent case of State v. Wyss, 124 Wis.2d 681, 735, 370 N.W.2d 745 [770-71] (1985), several different principles developed. First, under the "real controversy not fully tried" category, two different situations were included: (1) Either the jury was not given an opportunity to hear important testimony that bore on an important issue in the case, or (2) the jury had before it testimony or evidence which had been improperly admitted, and this material obscured a crucial issue and prevented the real controversy from being fully tried.

Under the second prong of the discretionary-reversal statute, the "miscarriage of justice" prong, the case law made clear that, in order to grant a discretionary reversal under this prong, the court would have to conclude that there would be a substantial probability that a different result would be likely on retrial. Wyss, 124 Wis. [2d] at 741, .

Schumacher, 144 Wis.2d at 400-01, 424 N.W.2d at 676-77 (emphasis added).

We emphasize the words "were included" because we believe that neither the Schumacher court nor the Wyss court intended that secs. 751.06 and 752.35, Stats., limit situations in which the real controversy has not been tried to the two evidentiary circumstances described in Wyss. The Wyss court said of secs. 751.06 and 752.35:

The case law reveals that situations in which the controversy may not have been fully tried have arisen in two factually distinct ways: (1) when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case; and (2) when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried.

124 Wis.2d at 735, 370 N.W.2d at 770-71 (citations omitted). The court did not say that situations in which the controversy may not have been fully tried had arisen in only two factually distinct ways.

Indeed, while the Wyss court referred briefly to situations in which the real controversy had not been fully tried, a discussion of the full range of such situations was unnecessary. The court of appeals had ordered a new trial on grounds that justice had miscarried. Id. at 732-33, 370 N.W.2d at 769. The court of appeals had not reversed on grounds that the real controversy had not been tried. For that reason, the circumstances under which either the supreme court or the court of appeals may reverse on making such a determination was not before the Wyss court.

That undoubtedly is why the Wyss court confined to a single paragraph its discussion of circumstances in which the real controversy had not been fully tried. Consistent with that brevity, the Wyss court cited four cases involving situations where the jury did not hear important testimony or where the jury heard evidence not properly admitted. ²

When applying sec. 751.06, Stats., and its predecessors, the supreme court has frequently concluded that the real controversy has not been tried in other situations. It did so in a leading case holding that sec. 805.13(3), Stats., prevents a party from raising an unobjected-to error in instructions on appeal: Air Wisconsin, Inc. v. North Cent. Airlines, Inc., 98 Wis.2d 301, 296 N.W.2d 749 (1980). After concluding that defendant-appellant had waived the instructional error, the Air Wisconsin court stated that it was not precluded from reviewing the claimed error in the instruction. Id. at 317, 296 N.W.2d at 756. The court cited Clark as holding that even though a party had waived the claimed error in the special verdict by failing to make an objection at the instruction and verdict conference, "the court would review the claimed error pursuant to sec. 751.06, Stats." Air Wisconsin, 98 Wis.2d at 317, 296 N.W.2d at 756. The Air Wisconsin court said that it could not conclude that defendant would probably win on a retrial, but it could conclude

that the [unobjected-to] instruction played a significant role in the jury's determination of causal negligence, and that the instruction, if erroneous, prevented the defendant from having a full, fair trial of the issues of the case.... We conclude that if the law ... was...