*1 Plaintiffs-Appel Elmer Hoskins and Hoskins, Grace I. lants, v. foreign a Company, United States Fire Insurance corporation Badger Paper Company, a Wisconsin

Corporation, Party Defendants-Third Plaintiffs, Casualty Foreign Corpora- a Company, Continental Defendant-Respondent-Cross Appellant, tion, Corpora a Wisconsin Mechanical, Inc., Tweet-Garot Defendant-Respondent-Cross Appellant- tion,

Petitioner,† Casualty Company a American Reading, PA, Foreign Corporation and Electric, VDH Inc., a Wiscon- Corporation, sin Defendants, Fidelity Guaranty United States & Company, a Foreign Corporation, Party Defendant-Third

Defendant, Oscar J. Boldt Third Company, Inc., Construction Party Respondent. Defendant-Cross

Supreme Court No. 30, 91-2957. Submitted on November briefs 12, 1994. January 1993. Decided

(Also 432.) reported in 509 N.W.2d †Motion reconsideration denied. defendant-respondent-cross appellant- For the *2 by petitioner Bouressa, Terence J. there were briefs Conway, Liebmann, Donald L. Romundson and Olejniczak Jerry, Bay. S.C., & Green Party Respondent

For the Third Defendant-Cross by Kirschling there was a brief Michael J. and Schober Bay. Ulatowski, S.C., & Green plaintiffs-appellants by For the there was a brief Hope Goldberg, Previant, Uelmen, Gratz, K. Olson and Brueggeman, S.C., &Miller Milwaukee. Upon

PER CURIAM. of the briefs consideration by review, submitted counsel on this Ordered, It Is this review is dismissed as improvi- dently granted. (dissenting). S. J. ABRAHAMSON,

SHIRLEY petition following for review set forth the issue for apply review: Did the court of fail the correct respon- standard of review to this verdict? The agreed argued dents this was the issue but it was not worthy justices of this court's review. At least three petition concluded that the for review should be granted, 809.62(1), and it was. Section 1991-92, Stats. ruling indicates criteria that will in be considered on a petition they for a but review, "neither control. . . nor measure ... the court's discretion." appellate practice

In accordance with the rules of operating procedures, parties and our internal filed court, court, briefs in this the case to the was submitted litigants and the court deliberated on the case. expended money the court time, have effort and on the assumption that the case would be heard and decided stage on the merits. The court should not at this late appellate proceeding petition dismiss the for having improvidently granted review as been without setting forth the reason for dismissal.* clearly presented in issue just clearly presented by in review as the briefs filed parties. surprises No have arisen in this case. justices may thoughts While some now have second deciding presented review, about the issue second thoughts my opinion, justify dismissing not, do improvidently granted review as an without interven- ing change of circumstances.

For the forth, reasons set I dissent from the dis- missal and would decide the case. *3 (dissenting). majority

STEINMETZ, J. orders petition improvi- that the for review be dismissed as dently granted. normally The basis for such order is that the court will not be able to reach the issue for accepted petition. which we That is not the case sufficiency here. While we must review the of the evi- required only dence, we are to do so to decide whether * The court has not giving been consistent about an explana tion dismissing a improvidently review as see, granted. For explanation dismissals where an given, was e.g., Arbitron Co. Div. Corp. Control Data v. Fall Broadcast of ing Corp., Furuseth v. 745, 108 Wis. 2d (1982); 324 N.W.2d 431 Lowe, (1981). 565, 101 Wis. 2d 304 N.W.2d 766 For dismissals see, e.g., Szwalkiewicz v. Gor explanation given, where no was ski Tool & Corp., (1981) 755, 104 Wis. 2d 318 N.W.2d 404 Mfr. Frankforter, State v. (Abrahamson, dissenting); J. 101 Wis. 2d (1981) 740, 309 dissenting); City (Abrahamson, N.W.2d 845 J. of Schwartz, Racine (1980) 745, 95 Wis. 2d 293 N.W.2d 925 (Abrahamson, dissenting). J. jury appeals improperly supplanted the

the court of upheld by verdict which was the trial court on motions after verdict. the issue for which we

The court should reach petition: accepted Did the court of exceed peti authority? my opinion, accepted its In we also this appeals' of in conflict tion because the court decision is 809.62(1)(d), prior court. See with decisions this sec. Stats. only jury appellate

An court should review a ver- any dict to determine if there is credible evidence that support Keane, would the verdict. Roach v. 73 Wis. 2d (1976). 524, 536, 243 N.W.2d 508 heard the following begin plaintiff evidence at trial. To with, clearly explain happened. could not how the accident many He could not remember how were workers during period immediately around the accident site preceding represented his accident or what trades were seeing anyone working there. He did not remember the area. plaintiff seeing

In addition, the could not recall hangers. pipe In fact, stated, rust on the he "I pay hanger didn't even that much attention to the really you." to be honest with plaintiff during eight-hour stated that his anyone working pipe shift he did not see ultimately on the that testimony clearly fell. His other contra- dictory to that of several other witnesses. The testimony heard the and observed the witnesses and plaintiffs testimony, disregarded con- could have *4 sidering how weak it was. lay agreed experts that Tweet-

Both and witnesses negligent handling pipes. in One was not the Garot independent not testified that Tweet-Garot did witness hangers engage dropping pipe in a in from to the floor 537 any free-fall. Another witness denied that Tweet-Garot vicinity employee inwas the of the accident immedi- ately happened before it occurred it at because shift change. investigation A witness told the that an found no witnesses who at the site of accident were the anything time it or who at the occurred knew about the accident. plaintiffs expert

On examination, cross the admit- background no ted that he had relevant from which to credibility reach his conclusions. His was also for the jury to determine. possible ways

Witnesses discussed various of tak- pipe ing the No to down. witness was certain as which method Tweet-Garot in fact However, used. the testi- mony free-falling made it clear that is one method that plaintiffs theory, pipe was not used. The that a fell hitting plaintiff building, the frame the was assumed that Tweet-Garot used the free-fall method. plaintiff argued negli- that Tweet-Garot was gent pipes because it cut and then left in them their hangers period removing for a of time before them. expert allowing pipes However, one testified that to hang cutting hangers after them is common. The are carry designed weight pipe of and the water pipe. testimony cutting and stock There was that pipe allowing hang hangers it to in the met industry commonly standards and is done. liability against any found no defendants, including approved Tweet-Garot. The trial court this verdict on motions after verdict. jury's finding should not if be overturned there any that, credible evidence under reasonable supports Coryell

view, Conn, verdict. 88 Wis. 2d (1979). 310, 315, 276 N.W.2d 723 When the trial court reviewing has evidence, reviewed the courts must be *5 Keene, 73 Wis. Roach v. especially interfere. loathe to jury verdict is if the decide This court should at 539. 2d appeals by supported The court evidence. credible support for a apparently the evidence examined did not. finding reached but could have which improperly the evidence all of reviewed court preponderance" weight "great stan- clear under a examining if record to establish than dard, rather supported In so verdict. credible evidence essentially doing, retried the case. the court of dismissing as the review the order I dissent granted its the case on improvidently decide and would granted review issue in the merits as to the by this court.