*1 ate and considered rule. expression to it. We adhere Case, Since the Wodill has re- revised and legislature codified the law to motor vehicles. Ch. Laws of relating Stats., 1957. Sec. 85.175 remained in (3), almost identical and is now sec. language 346.34 is Stats. 1957. This some indication that interpretation statute Wodill decision was to the as acceptable as legislature, well drafters of the code. his brakes for
Lepak applied purpose avoiding from danger car. anticipated Schmidt are Appellants in effect him with an excess caution in charging meeting a hazard he foresaw on the ahead of road him. Obviously is not the of a case driver who decreases his suddenly for some reason irrelevant to his use speed of the highway. Whether such a has a driver to look out for duty vehicles him and to following give greater of his warning intentions than statute will required by question decision case. proper By Judgment affirmed. Court.— Plaintiff and Respondent, Steinfeldt, vs. Pierce others, Defendants: Herman Mutual Insurance Defendant Appellant.* Company, 5, 1957. 9 November October * denied, costs, rehearing with on January Motion for 1958. $25 *2 Thiel, Allan & was a brief by there For the appellant Allan. . Lloyd oral argument by and Mayville, Storck was a brief Callahan & by there For the respondent Columbus, Carroll B. and oral argument Arnold Callahan. trial court reduced When C. J.
Martin, trial, it to the first defend- gave the jury awarded ants the permitting entry judgment “or, as so amended default of exercise of such decision, from the of this twenty days filing thereby request new trial. A ... new trial will concern damages only.” not disturbed the court’s decision were
$1,000 for automobile, for damage plaintiffs bandages, $50 crutches, and rental of drugs, and for doctor and $227.50 bills. An. hospital for interlocutory was entered on these amounts with costs on September 1956. Thereafter the new trial was had on which the jury $2,500 assessed for plaintiff’s and suffer- pain ing $6,000 temporary in- disability permanent jury. Judgment entered thereon on February 1957. *3 asks this court
Appellant to review the evidence and the on made the in findings the first This jury trial. we cannot do. If wanted to its appellant preserve the on issues of it appeal should not negligence, have exercised its to have a new trial the option on issue of damages only. the new trial on it accepting damages, find- accepted on its ings liability, waived on those appeal issues. other view
Any would render the new trial on a damages nullity. we Suppose accepted and held that was at least as as the negligent insured. appellant’s trial, held, What would the new purpose on already damages have served? It be just would an idle gesture, waste of time and The an money. purpose to terminate v. See Corcoran Horran litigation. 120, 55 12 (1882), Wis. 468; N. Baker v. Madison 137, W. 62 22 (1885), Wis. 141, 583; 22 N. W. W. Baxter v. N. Chicago & N. W. R. 307, 644; Co. Wis. 80 N. W. Heimlich (1899), v. Tabor 10; 123 Wis. 102 N. W. v. (1905), Campbell N. 193 Wis. 374. The 214 W. litigation Sutliff accept- terminated by appellant’s has been as to negligence trial on only. ance of a new damages on trial to take be cannot permitted Appellant on jury negli- the findings only, accepting damages — fixed on now, with the damages satisfied being gence,—and trial, only the issues liability. the new in a is now issue on which trial, no on the new awarded is the issue of the damages are excessive. made that they contention is dismissed. By Appeal Court.-— The motions (concurring). Cukrie, J. usual case followed the in the instant filed by cases in accident automobile defendants pattern employed in of the favor has returned jury as a a determination The first relief requested plaintiff. as to entitle issues so law of the matter of negligence Secondly, as to them. of the complaint movants to dismissal for a new denied, moved then such defendants if this was con- errors of enumerated alleged trial on the ground denied, if the other motions be trial. duct of the Thirdly, of excessive because a new trial was requested then awarded to plaintiff. that, trial where the seem to beyond question
It would case, court, the instant only grants as in issue of new trial on the for a alternative amount of for a reduced entered having *4 motions, are defendants moving such other all and denies to this of their right appeal not thereby deprived after In other their motions verdict. raised in issues the other words, reason the defendants by result by gained where of a loaf instead is but part motions of their loaf, in which not an appeal this should preclude the whole of whole loaf. to secure sought it is again This raises the of a in question how party, position in case, who has secured such partial relief, in the form of awarded an being of either option being awarded new trial on or of damages only having judgment amount, entered for the in a plaintiff reduced must proceed so as not to waive his as to the other issues right appeal raised his motions after verdict. The majority opinion nerein makes it clear that he waives such if he in a new trial on participates the issue of damages only. is further question because of the in complicated dilemma which such defendant finds himself. Under the relief partial he is so granted given many days to exercise the of either option new trial on having or of damages only, to be entered in permitting judgment favor for a reduced amount of The time in which damages. he is permitted to exercise such will option have since long expired time he his and the perfects same is heard and determined this court. The that, be so option may worded if the defendant makes no election within the option period, the one of the two alternatives which he deems least favor- able will become If effective. he makes an affirmative election under the option, otherwise affirmatively acts to take of the advantage relief partial afforded the trial court’s verdict, order on the motions after he have may waived his on the other hand, issues. On the other if he fails to elect the favorable alternative under the the time for appeals, such election will have expired. The situation is analogous to that facing plaintiff who inis demurrer having to his sus complaint tained under an order which him grants twenty days which over. plead Does he lose the benefit of the plead over if he on the appeals merits and is unsuccessful on such The revised appeal? mandate entered in Cross v. Leuen berger 232, 238b, 267 Wis. 65 N. W. (2d) (2d) N. W. as a result of the motion for rehearing, *5 to be followed. as to the procedure provides key proper should include such situation plaintiff appellant that, if on the in his brief a unsuccessful appeal, request as to start the running court the order below so modify date from the in which to over twenty-day period plead the trial court. the remittitur this court to to This to be same would seem equally applicable procedure in the instant a defendant such inserted in defendant’s action. A should be request that, in the event the to this court brief on the appeal asking new period electing proves unavailing, trial, be for a suffering entered reduced judgment commence from the date of amount of be made to the remittitur. be in order. If the order
A final word of caution might is taken awards new entered below from which certain that should make such trial on damages, other motions after verdict. contains denial his order done, an he be from order this is not then will appealing If himself, and there will be is favorable entirely hand, an to review. On the other order for this court nothing Therefore, if an is order. not appealable for judgment is which so words the entered on motions order for a reduced amount of damages that judgment behalf of the when the defendant be entered fixed, a trial as elect, period fails to must let such the defendant be only, from such judgment. and then appeal entered my opinion (dissenting). Fairchild, J. on motions dismissed. Appellant attempted not
should from errors both on obtain relief alleged verdict after The trial court determined issues. that damage but had awarded exces- not merely perverse as to relief The trial gave damages. sive *6 either giving for an amount permit judgment fixed the court or to with a trial on new proceed cannot only. opinion be said to have waived my appellant its review of the issues on with a new trial as to choosing proceed damages only. that it argument had made such waiver been made could have with logic had the chosen equal permit judgment at the reduced The reduction figure. offered trial on were alternative damages only simply methods of relief from excessive granting only. Neither choice was inconsistent with the preservation of the verdict on challenge appellant’s liability.
Able counsel Steinfeldt did not assert that there had been a of its waiver but appeal, argued here. merits Ilsley vs. Appellant,
Peppas, Bank, Marshall & Respondent. 5, 1957. October 10 November