Zweifel v. Milwaukee Auto. Mut. Ins. Co.

• Decision Date: 05 October 1965
• Citation: 28 Wis.2d 249,137 N.W.2d 6
• Parties: Mary ZWEIFEL, a minor by Laurence W. Hall, her Gdn. ad Litem, et al., Plaintiffs-Respondents, v. MILWAUKEE AUTOMOBILE MUT. INS. CO., an insurance corporation, et al., Defendants-Appellants, Hartford Accident & Indemnity Co., an insurance corporation, et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 6

137 N.W.2d 6

28 Wis.2d 249

Mary ZWEIFEL, a minor by Laurence W. Hall, her Gdn. ad

Litem, et al., Plaintiffs-Respondents, v. MILWAUKEE AUTOMOBILE MUT. INS. CO., an insurance

corporation, et al., Defendants-Appellants,

Hartford Accident & Indemnity Co., an insurance corporation,

et al., Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 5, 1965.

Respondent Mary Zweifel was injured on December 21, 1960, in a Rock county car accident, when a car driven by appellant James Rowley in which she was riding struck a culvert (located under a farm driveway just off Tolles Road south of Cooksville), while attempting to pass another car driven by respondent, Rolland Propst. Respondent Zweifel brought suit against Rowley and Propst and their insurance companies. The jury found Rowley 80 percent and Propst 20 percent negligent, and awarded damages in the amount of $15,315.11 to respondent and $2,371.28 to respondent's father. Rowley and his insurance company (both hereinafter appellant) appeal from the judgment entered in accordance with the jury verdict. Propst seeks review of that portion of the judgment finding him 20 percent negligent.

The facts will be stated in the opinion.

Crosby H. Summers, Janesville, for appellants.

Geffs, Geffs, Block & Geffs, Jacob Geffs, Janesville, for defendants-respondents.

Hall & Griffith, Laurence W. Hall, Madison, for plaintiffs-respondents.

WILKIE, Justice.

Three general questions are presented on this appeal. The first concerns the negligence of each driver and the jury's apportionment of the negligence as between Rowley (80%) and Propst (20%). The second involves the alleged improper closing arguments made by both respondents' counsel. The third pertains to whether or not there was prejudicial error committed during the trial on numerous points alleged by appellant.

Negligence.

On the night of December 21, 1960, Evansville high school played a basketball game at Cambridge. Among the Evansville youths attending the game were respondent Mary Zweifel, Kenneth Nelson, and Carol Felber, who went in a car driven by appellant Rowley, and Sharon Karroll who rode with Propst. Appellant left Cambridge a short time ahead of Propst after the game. Each traveled through Stoughton and on to Cooksville. After both cars had stopped at an intersection in Cooksville, Propst passed Rowley and pulled some distance ahead. The cars then proceeded south toward Evansville on Tolles Road.

Tolles Road runs north and south and is straight and blacktopped for several miles outside of Cooksville. It varies in width from eighteen to twenty feet with a one-foot-gravel shoulder. There is no center line. A few miles south of Cooksville is a slight hill. The Sawtelle farm is situated on the west side of the road at the bottom of the incline. On the east side of Tolles Road, about thirty feet south of the Sawtelle driveway and three feet from the edge of the blacktop, was a guidepost marking the location of a culvert running under the road. Some 210 feet south of the guidepost was a driveway to another house (hereinafter tenant house). There was a ditch on the east side of the road which commenced at a point 125 feet north of the Sawtelle driveway and ran into a culvert which was under the tenant house driveway. The ditch varied in depth from three feet at its origin to five feet at the culvert. There was some snow off the road and in the ditch, but the pavement was clear and dry.

Appellant was traveling about 55 miles an hour as he came over the hill and noticed that he was gradually overtaking Propst who was going about 50 in his own lane. Appellant testified that he sounded his horn when he was about 50 feet behind Propst and then pulled out to pass. He further stated that when the front of his car was approximately even with the rear of Propst's car, the latter veered into the left lane--despite continued blasts on the horn--and forced him onto the shoulder. This occurred at a point 560 feet from the tenant house or 320 feet from the Sawtelle driveway. Appellant says that he elected to continue to make his pass but could not because Propst would not yield. He hit the guidepost and it spun up, broke his windshield, and caused him to lose control of his car. The car dropped into the ditch and kept going until it hit the culvert. Appellant never applied his brakes although respondent testified that she told him to. Rowley's story was substantiated for the most part by his three passengers, but Miss Zweifel thought that he sounded his horn for the first time when Rowley was alongside Propst and Propst began to swerve. There was no actual contact between the cars.

Propst, his passenger Sharon Karroll, and Mrs. Sawtelle all testified that they did not hear Rowley's horn. Propst did not remember deviating from his lane, but said that even if he had, there was still room for a car to pass. Miss Karroll and Propst both testified that Rowley's car was ahead of them when it hit the guidepost and that they saw the post fly over Rowley's car. Propst stopped at the culvert and took the occupants of the car to a doctor in Evansville. Rowley testified that during the trip Propst admitted crossing into the left lane, but this was denied by both Propst and respondent. Respondent told Propst not to 'blame yourself; it wasn't your fault.' Rowley, Nelson, and Miss Felber attested to hearing a comment to this effect.

Both drivers were found causally negligent by the jury. These findings will not be upset if there is any credible evidence which, under any reasonable view, fairly admits of an inference supporting the finding. ¹

Rowley contends that on the facts he could only have been found negligent for failing to give an audible signal, and that the jury could have found him negligent in this respect only if they concluded that he did not sound a timely and audible signal that Propst, being reasonably attentive, could have heard. Citing Kincaide v. Hardware Mut. Casualty Co. ² and Frankland v. Peterson. ³ Rowley argues that the testimony of Propst, Miss Karroll, and Mrs. Sawtelle, that they did not hear a horn, was negative and insufficient to create a jury issue in this regard in light of the positive testimony of himself and his three passengers that the horn was sounded. ⁴

Although the jury could have concluded from all this testimony that Rowley sounded his horn the jury could have concluded the opposite. The so-called affirmative testimony or Rowley and his three witnesses was not substantially the same. Indeed, although she agreed that appellant did sound his horn, respondent Zweifel testified that he did not do so until his car was abreast of Propst's. Thus, even assuming that appellant actually gave an audible signal, the jury could have found, because of the disputed testimony, that it was untimely.

It is clear, therefore, that there was a jury question on whether Rowley gave the required audible signal and there was credible evidence to support a jury finding of negligence in this respect.

Propst admits that there was a jury issue as to whether he invaded the left lane but argues that since the accident occurred after Rowley had actually pulled ahead of him, then any negligence on his part could not be causal. Appellant traveled 560 feet between the time he turned off the road and the time he hit the culvert. The evidence does show that the Propst vehicle was in the right lane and somewhat behind the Rowley vehicle when the latter struck the guidepost and went out of control. And Rowley admittedly chose to accelerate rather than brake as Miss Zweifel requested, in order to complete the pass. Thus, it would have been permissible for the jury to infer that Rowley, having passed Propst, was negligent in the way he managed his vehicle, and that this, and not his failure to signal or Propst's veering, was ultimately the sole cause of the accident. But the jury could also have believed that Propst, having heard Rowley's warning signal, set off the chain of events leading to the collision by forcing the latter off the road but that Rowley's fateful decision to complete his pass was a more significant factor.

On these facts there was evidence on which the jury could rightfully determine that each driver bore some blame for the accident and the apportionment of that negligence as between the two drivers was properly a question to be answered by the jury. ⁵Closing Arguments to the Jury.

Appellant claims that improper argument was made to the jury in several respects. We need not consider whether or not the particular arguments were improper, and if improper, were prejudicial, for the reason that the appellant failed to move for a mistrial before the jury returned its verdict and, therefore, waived any complaint he might have in this regard. ⁶ Because of this waiver, we do not consider it necessary to detail the alleged improper arguments or to discuss the merits as to any of these arguments.

In Kink v. Combs, ⁷ an argument alleged to have been prejudicial was made by plaintiff's counsel during his opening statement to the jury. This court held that if he felt aggrieved, the defendant should have moved for mistrial at the close of the case. ⁸ Where a motion for mistrial is grounded on alleged improper and prejudicial argument to the jury, such a motion must be made at some time before the jury returns its verdict.

In connection with the assertions of appellant with respect to improper arguments by counsel, the return on this appeal includes the transcribed arguments of counsel for both respondents but no part of the argument by counsel for the appellant. Respondents have moved to strike that part of the return that contains their arguments. That motion is denied. The arguments are properly part of the record although, of course, this court on appeal is bound to be handicapped where a point is made of improper argument where a fair consideration must necessarily involve a review not only of...