Opinion
[Case No. 176.] [Case No. 177.]fn_
Motion for rehearing denied, with $25 costs, on April 5, 1955.
January 14, 1955 —
February 8, 1955.
APPEAL from parts of a judgment and order of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Affirmed.
For the plaintiff there was a brief and oral argument by Crosby H. Summers of Janesville.
For the defendants there were briefs by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Harry F. Knipp and Roy E. Berg, all of Janesville.
For the interpleaded defendants there were briefs by McCue Regan of Milwaukee, and oral argument by John H. Regan.
Case No. 177:
For the plaintiff there were briefs by McCue Regan of Milwaukee, and oral argument by John H. Regan.
For the defendants there were briefs by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Harry F. Knipp, all of Janesville.
Two actions were begun, one by Gailord Omer, on the 30th day of April, 1953, against Donald B. Risch and Rural Mutual Casualty Insurance Company; and the other by Andrew Podlesny against Donald B. Risch and his insurer Rural Mutual Casualty Insurance Company.
In the Omer case, the defendants were permitted to interplead Andrew Podlesny and his insurer as parties defendant. These interpleaded defendants made and served a cross complaint against defendants, Risch and his codefendant, who in turn made and served a cross complaint against the interpleaded defendants. The Omer complaint was then amended, and finally all parties, including Risch's employers, Harold B. Brown and Lawrence J. Hughes, and the Hardware Mutual Casualty Company, were brought in as parties defendant.
The two actions, Omer v. Risch et al., and the action of Podlesny v. Risch et al., were consolidated for trial. There was one special verdict covering issues in both actions. In the first case, Omer v. Risch et al., the interpleaded defendants have appealed from a judgment of contribution under which Risch and his insurer and employer are to recover from Podlesny and his insurer one half of the amount awarded Omer. The defendants have appealed from the order setting aside the verdict and granting a new trial. The order reads:
". . . that the verdict herein, except in so far as it relates to damages of the plaintiff, is hereby set aside and a new trial ordered on all issues, except damages, in the interests of justice, with costs to abide the event of the action."
The cases were tried to court and jury, and in the special verdict returned, there was a finding that Risch was not negligent in the operation of his truck in respect to keeping a proper lookout; in turning to the left at the time he did; but that he was negligent in turning to the left without giving a proper signal of his intention to turn; and that his failure to give a signal was causal. On motions after verdict, the trial court changed the answer with reference to proper lookout from "No" to "Yes," and found that negligence was causal. In their verdict with relation to Podlesny, the jury found that he was negligent in the management and control of his automobile, in the speed at which he was driving, and that such failures were causal, and the court then directed judgment as follows:
"It is ordered and adjudged that the plaintiff Gailord Omer do have and recover from the defendants Donald B. Risch, Rural Mutual Casualty Insurance Company of Wisconsin, and Harold D. Brown and Lawrence J. Hughes, copartners, d/b/a Brown and Hughes Implement Company, and each of them, the sum of eighteen thousand six hundred twenty-six and 90/100 dollars ($18,626.90), together with taxable costs and disbursements, taxed against said defendants in the sum of four hundred ten and 89/100 dollars ($410.89) or in all a total of nineteen thousand thirty-seven and 79/100 dollars ($19,037.79).
"It is further ordered and adjudged, that upon the payment of said judgment as heretofore rendered to the plaintiff Gailord Omer, defendants Donald B. Risch, Rural Mutual Casualty Insurance Company of Wisconsin, and Harold D. Brown and Lawrence J. Hughes, copartners, d/b/a Brown and Hughes Implement Company, do have and recover from the defendants Andrew Podlesny and Milwaukee Automobile Insurance Company, one half of the amount of the payment so made to the plaintiff, together with their costs and disbursements, taxed against said defendants Andrew Podlesny and Milwaukee Automobile Insurance Company in the sum of one hundred eighty-four and 57/100 dollars ($184.57), provided, however, the liability of the defendant Milwaukee Automobile Insurance Company shall be limited to the amount of coverage as stated in its policy, to wit: $10,000, plus the taxable costs and disbursements of the defendants Donald B. Risch, Rural Mutual Casualty Insurance Company of Wisconsin, and Harold D. Brown and Lawrence J. Hughes, copartners, d/b/a Brown and Hughes Implement Company, on their judgment for contribution.
"It is further ordered and adjudged that judgment be rendered in favor of the defendant Hardware Mutual Casualty Company and against the plaintiff, dismissing the complaint of the plaintiff and that said defendant do have and recover taxable costs and disbursements from the plaintiff in the sum of one hundred eighteen and 92/100 dollars ($118.92)."
The defendants Risch, Mutual Casualty Insurance Company, and the interpleaded defendant Andrew Podlesny and his insurer appeal.
Case No. 176:
The judgment in favor of Omer must be affirmed. The findings of the jury, approved by the learned trial judge, are sustained by credible evidence. The defendant Risch failed to see the car in which Omer was a guest, although he had ample opportunity to see it, until after he had crossed the center line of the highway preparatory to turning into the farm driveway where he was to deliver a manure spreader which he was towing behind his truck. He did not notice Podlesny's oncoming car timely, and, under the facts of the case, a finding is warranted to the effect that his negligence contributed to the collision between his truck and Podlesny's car injuring Omer. Risch's testimony is to the effect that he did not see the oncoming car until he was between 30 to 40 feet north of the point of impact, while it was possible to see southerly a distance of some 900 feet. From the testimony as viewed by the jury and by the trial judge, Donald B. Risch was causally negligent with respect to turning to the left, as he did, without signaling his intention to make the turn.
On the issues between the defendant Risch and the defendant Podlesny in the comparison of negligence, the jury apportioned the responsible negligence as between the drivers 25 per cent to Risch and 75 per cent to Podlesny.
As to the plaintiff Omer, his right to recover under the verdict against Risch and his insurance carrier must be upheld, and the judgment in that respect is affirmed. Omer belatedly did move to amend his complaint to allege a cause of action against his host and the Milwaukee Automobile Insurance Company. That motion was denied, and properly so, under the doctrine recognized in Rhodes v. Shawano Transfer Co. 256 Wis. 291, 294, 41 N.W.2d 288, where it was said:
"Even under the elasticity of code pleadings, pleadings should be such that litigants know at least the general position of the parties to the action at the time of trial so that they may be apprised of the charges against which they must defend."
In his complaint, Omer stated no cause of action against Podlesny. The trial court correctly ruled that an amendment stating a cause of action against Podlesny coming in at this time would deprive the defendant Podlesny and his insurer of an opportunity to defend against a complaint thus amended. Omer's recovery upon the verdict can be only against Risch and Rural Mutual Casualty Insurance Company.
The trial court in considering the matters in difference between the drivers of the two vehicles, ruled with relation to that phase of the case that in the interest of justice there must be a re-examination of the apportionment of negligence. Risch and Podlesny were both negligent. It appears that Risch did invade the lane of travel of Podlesny and that he failed to keep a proper lookout. And this required holding him responsible for a greater portion of that negligence than 25 per cent. It was also ruled that the assessment of the portion of negligence chargeable to Risch and Podlesny must have further consideration. The motion of Podlesny to have the verdict show that Risch was causally negligent with respect to lookout and with respect to turning to the left when such a turn could not be made with reasonable safety to other users of the highway was properly granted in order to have a new determination of the apportionment of the negligence.
The trial court entered its judgment affecting the Hardware Mutual Casualty Company, ruling that as the damages found for the plaintiff Omer and for the plaintiff Podlesny do not exceed the limits fixed by the policy of insurance assumed by the Rural Mutual Casualty Insurance Company, therefore the Hardware Mutual Casualty Company, under its contract, and according to the terms of this policy, is entitled to an order of dismissal. The court was of the opinion that the physical facts warranted a finding of excessive speed on the part of Podlesny. The evidence is undisputed, which shows that the Podlesny car skidded 138 feet prior to the collision with Risch's truck, and that during a portion of this distance Podlesny's car was skidding sideways, that the impact was very severe in spite of the fact that the Risch truck had almost stopped its forward motion, that the Podlesny car was severely damaged, and "that the front bumper of the Risch truck was sheared off and so completely imbedded in the right side of the Podlesny car that a pickaxe was necesary [necessary] to remove it." It also appears that the impact drove the Risch truck and tow backward a short distance, and that after striking the truck, Podlesny's car moved about 12 feet more into the ditch and then 18 feet farther, and stopped when it buried its nose in the side of the ditch. For these reasons, the order for a new trial of the issues in the case of Andrew Podlesny against Risch was granted on all issues except damages.
By the Court. — Judgment in favor of Omer in the case of Gailord Omer v. Donald B. Risch, Rural Mutual Casualty Ins. Co. et al., No. 176, is affirmed; the order for a new trial in Andrew Podlesny v. Donald B. Risch and Rural Mutual Casualty Ins. Co., No. 177, is affirmed. The judgment for contribution in Omer v. Risch, No. 176, is reversed, and the cause of action of Risch and Rural Mutual Casualty Insurance Company on the cross complaint for contribution shall be held in abeyance until after the new trial is had in the case of Podlesny v. Risch, No. 177, and then disposed of on the basis of whether or not Podlesny is found causally negligent therein.