Wedel v. Klein

• Decision Date: 06 December 1938
• Citation: 282 N.W. 606,229 Wis. 419
• Parties: WEDEL v. KLEIN et al.
• Court: Wisconsin Supreme Court

229 Wis. 419

282 N.W. 606

WEDEL

v.KLEIN et al.

Supreme Court of Wisconsin.

Dec. 6, 1938.

Appeal from a judgment of the County Court of Columbia County; A. F. Kellogg, Judge.

Reversed with directions.

The action was commenced by the plaintiff, Margaret Wedel, against the defendants, Herbert F. Klein, Llewellyn Klein and Hardware Mutual Casualty Company, on November 2, 1937, to recover damages for personal injuries sustained by her in a collision between the automobile in which she was riding and one driven by the defendant, Llewellyn Klein. Joseph Wedel, the plaintiff's husband, who was the driver of the car in which she was riding at the time of the collision, and his insurance carrier, Milwaukee Automobile Insurance Company, were upon the petition of the original defendants above named, joined as party defendants in the action. An amended complaint was served upon all of the defendants. The defendants answered. The defendants, Llewellyn Klein and Hardware Mutual Casualty Company, cross-complained against the defendants, Joseph Wedel and Milwaukee Automobile Insurance Company, for contribution. The defendants, Joseph Wedel and Milwaukee Automobile Insurance Company also cross-complained against Llewellyn Klein and Hardware Mutual Casualty Company, for contribution. Later on Wedel and Milwaukee Automobile Insurance Company served an amended cross-complaint in which it was alleged that Llewellyn Klein, at the time of the collision, was guilty of gross negligence, and in which it was demanded that the cross-complaints of Llewellyn Klein and Hardware Mutual Casualty Company be dismissed with costs. The several cross-complaints were duly answered. Trial was had to the court and a jury. The issues were submitted to the jury by special verdict. The jury found that Klein was negligent in respect to (1) keeping a proper lookout, (2) yielding the right-of-way, (3) operating his automobile while under the influence of intoxicating liquor and (4) that such negligence in the respects found were causes of the plaintiff's injuries and damages. The jury further found that Wedel was negligent in respect to (1) keeping a proper lookout, (2) yielding the right-of-way, and (3) that such negligence in the respects found were causes, etc. The jury further found that the plaintiff was not negligent in respect to (1) keeping a proper lookout or (2) failing to protest against the manner in which the car was being operated by her husband, Joseph Wedel, and (3) the amount of damages sustained by her. The jury, by its verdict, further found that the defendant Klein was guilty of gross negligence in that at the time of the accident he was driving his car while under the influence of intoxicating liquor. The jury therefore found that Klein was guilty of both ordinary and gross negligence. After the coming in of the verdict the plaintiff moved for judgment on the verdict. The defendants, Milwaukee Automobile Insurance Company and Wedel, moved for judgment dismissing the cross-complaints of Klein and Hardware Mutual Casualty Company and the defendants Klein and Hardware Mutual Casualty Company made the usual alternative motions, to set aside the verdict, to change the answers, for a new trial and further moved that in the event the defendants' said motions were denied, for judgment for contribution against Wedel and Milwaukee Automobile Insurance Company, upon the verdict as rendered. The trial court granted the plaintiff's motions, denied the motions of the defendants, Wedel and Milwaukee Automobile Insurance Company, and denied the motions of Klein and Hardware Mutual Casualty Company, except that for judgment for contribution against Wedel and Milwaukee Automobile Insurance Company. Judgment was accordingly entered. Hardware Mutual Casualty Company thereafter paid the judgment. From so much of the judgment as adjudged that the defendants Klein and Hardware Mutual Casualty Company have judgment for contribution against the defendants Wedel and Milwaukee Automobile Insurance Company, the latter defendants appealed.Regan & McCue, of Milwaukee, and Arno J. Miller, of Portage, for appellants.

Rogers & Owens, of Portage, for respondents.

NELSON, Justice.

[1][2] The jury by its verdict found the defendant, Klein, guilty of both ordinary and gross negligence. Such findings were in response to questions which permitted the jury to so find. Upon motions after verdict, the trial court no doubt realized that under the law of this state, ordinary negligence and gross negligence are distinct kinds of negligence and do not grade into each other; that ordinary negligence lies in the field of inadvertence and gross negligence in the field of actual or constructive intent to injure. See Bentson v. Brown, 191 Wis. 460, 211 N.W. 132, and numerous cases cited in that opinion. The trial court probably further realized that the jury should not have been permitted to find that Klein was guilty of both ordinary and gross negligence and that the verdict rendered was therefore inconsistent....