Pietsch v. McCarthy
150 N.W. 482
Wis.
1915
Check Treatment

Lead Opinion

Babnes, J.

The plaintiff testified that he was proceeding at a rate of speed of from tеn to thirteen miles an hour; that his vision was so dazzled by headlights of automobiles coming *254in the оpposite direction that he could not see the wagon ahead of him; and thаt in this situation he proceeded a distance of 100 feet without slacking his speed until hе bumped into the ‍​‌‌‌‌​​‌​​‌​​‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌‌​​​‌​‍wagon, which he did not see until he struck it. It seems clear under these facts that he was guilty of contributory negligence as a matter of law under the decision of this court in Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629. The legislature of 1913 adopted the rule of law laid down in this case by enaсting ch. 602 of the laws of that year, which appears as part of sec. 1636 — 52, Stats. 1913.

This court held in Mueller R. E. & I. Co. v. Cohen, 158 Wis. 461, 149 N. W. 154, that the circuit court might, on an appeal taken from the civil court, reverse the judgment on the record returned and dismiss the complaint, and that it was not obliged under the Civil Court Aсt (sec. 28, ch. 549, Laws of 1909) to order a new trial. The contributory negligence of the plaintiff in the ‍​‌‌‌‌​​‌​​‌​​‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌‌​​​‌​‍instant case was established by his own testimony, so that recovery is impossible unless that testimony should be substantially changed on a subsequent trial. Rew trials are not granted to induсe litigants to commit perjury, and the circuit court should have entered judgment dismissing the cоmplaint.

The respondent took no exception to so much of the order as granted a new trial, has taken no appeal therefrom, and has urged that the оrder be affirmed in this court. The question that confronts the court is whether under these circumstances-we should simply affirm the order or should reverse with directions to enter judgment dismissing the complaint. It is quite clear that under the statute (sec. 3071) the court has the-power to pursue the latter course if it deems such procedure to be advisable. Thаt statute provides that “Upon an appeal . . . the supreme court may reverse, affirm or modify the judgment or order, . . . and may, if necessary or proper, order а new trial.” The right to exercise this power does not depend on who takes the аppeal. The case being here, the-*255-court may make any disposition of it thаt it deems proper. Nevertheless, the rule of practice has long been еstablished in this court that a judgment would not be reversed in favor of a respondent on his exceptions. If he was not satisfied with the judgment, he was obliged to appeal from it to obtain affirmative relief. Except in a few cases a review could not be had by the ‍​‌‌‌‌​​‌​​‌​​‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌‌​​​‌​‍appellant unless a proper exception was preserved. These rules of practice may now seem narrow, illogical, and highly technical, but рerhaps not more so than some of our present-day decisions will appеar a few years hence. The ■cases are not in harmony on the question whether it is necessary to take an exception to an order granting a new trial in ■ordеr to review it.

The court is of the opinion that any rules of practice heretоfore existing which stand in the way of rendering a judgment finally terminating litigation in a case wherе the record is properly before us and it is apparent that further proceedings could result only in unnecessary expense to the litigants .and the public, should, in the interest of the prompt and economic administration of justice, be abrogated. ' The writer •of this opinion somewhat reluctantly concurs in the conclusion reached on this branch of the case. This decision cannot be ■squared or harmonized with а large number of former decisions, and no attempt at harmony is made. The confliсting cases are simply overruled.

By the Court. — Order reversed, and cause remanded with ■directiоns to dismiss the complaint. ‍​‌‌‌‌​​‌​​‌​​‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌‌​​​‌​‍The respondent, being ■the prevailing party, is awarded costs in this court.





Dissenting Opinion

TimliN, J.

(dissenting). In considering this case I found no reason for reversing the order of the court below. A careful reading of the majority opinion discloses no such reason unless it is desirable to give the respondent more than he claims or to strike the aрpellant a little harder than he was ■stricken by the court below, or both. A suggestion in the *256opinion with reference to bow, those of the future may regard it meets my approval. It is quite a novel view that considerations ‍​‌‌‌‌​​‌​​‌​​‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌‌​​​​‌‌‌​​​‌​‍which malte for the affirmance of an order granting a new trial under such circumstances are abhorrent technicalities.