Gross v. Midwest Speedways, Inc. ( 1977 )

EOBEET W. HANSEN, J.

Of the various trial court rulings challenged on this appeal, the first is the trial court’s denial of Midwest’s motion for summary judgment. This motion was based on the decision of this court in the first appeal involving the same parties and the same claim.¹ If the denial of the motion for summary judgment is before us on this appeal, the propriety of that denial is dispositive of this appeal. For if the trial court erred in denying summary judgment, a reversal is required and summary judgment in favor of Midwest must be granted. However, if the trial court did not err in denying the motion for summary judgment, other issues remain to be resolved.

The preliminary question is whether the trial court’s denial of Midwest’s motion for summary judgment is now before us. The plaintiff’s claim is that Midwest lost the right to challenge this ruling when it failed to appeal the denial of its motion. It is correct that the order denying Midwest’s motion for summary judgment was appealable.² However, it does not follow that the failure to appeal immediately from the order denying the motion for summary judgment waives the right to challenge the denial in an appeal from the final judgment. An order overruling a demurrer is also, by statute, an appealable order.³ Where a plaintiff did not immediately appeal from an order overruling a demurrer, but, as here, appealed from the final judgment of the trial court, we held that the order overruling the demurrer is reviewable in the appeal from the judgment.⁴ What we held as to orders overruling a demurrer applies under the same statutes to orders denying motions for summary judgment. It is true that our court has held that where, following denial of his motion for summary judgment and without making any subsequent motion for directed verdict, a defendant voluntarily elected to proceed with trial before a jury, he waived his right to appeal the denial of summary judgment.⁵ A voluntary election to proceed is absent in the case before us. Midwest moved for a nonsuit and a directed verdict, submitted proposed instructions to the jury as to its nonliability, moved for judgment notwithstanding the verdict. All of these motions were predicated on the same error on which the motion for summary judgment was brought. Under the applicable statutes and the Sawejka holding, we hold that Midwest did not forfeit its right to challenge the denial of its motion for summary judgment by not appealing that denial when it was made.

Similarly, we find no waiver of the right to challenge the denial of the motion for summary judgment in Midwest’s failure to seek a writ of mandamus following the denial. There are decisions of this court holding that mandamus is the exclusive remedy to compel a trial court to follow a mandate of this court.⁶ However, these cases deal with a mandate ordering the trial court to take a particular action or enter a particular judgment. In such a situation we have held: “The sole remedy of defendant is an original action invoking the supervisory power of this court to compel the lower court to follow its mandate.”⁷ In the appeal of the first judgment in this case, the mandate of our court, at least the portion of it here involved, stated “and cause remanded for a new trial on the issue of negligence only.”⁸ In retrospect, it is evident that a more detailed blueprint of the status of Midwest on retrial would have- been helpful. Under the mandate of this court, as actually worded, the trial court exercised its discretion as to whether the mandate permitted the retention of Midwest as a party defendant on retrial. Mandamus lies to compel the trial court to take a specific action which should have been taken, but mandamus does not lie unless the duty of the trial court is plain and the refusal to proceed within its jurisdiction to perform that duty is clear.⁹ Where the mandate of this court orders “a new trial on the issue of negligence only,” and where a new trial as to negligence was in fact ordered, we do not believe that the basis for issuing a writ of mandamus is established.

Nor do we find merit in the plaintiff’s contention that Midwest lost its right to move for summary judgment by not moving for a rehearing on the first appeal to clarify the mandate. We point out that the plaintiff could also have moved for a rehearing to clarify the mandate, but did not. While rehearing is an appropriate mechanism for resolving doubts as to a mandate or an opinion,¹⁰ it does not follow that Midwest’s failure to move for a rehearing following the decision in the first appeal on the speculative ground that the trial court might misinterpret the mandate on remand should bar either its subsequent motion for summary judgment on retrial or an appeal of the denial of that motion from the judgment entered on the second trial.

Having held that the denial of the motion for summary judgment is properly before us on this appeal, we now consider whether the trial court erred in denying the motion. This in turn brings us to an analysis of the first decision, Gross v. Denow.¹¹ In the first trial, the jury apportioned 70 percent of the causal negligence to Midwest, 25 percent to Denow and 5 percent to the plaintiff Gross. Our court held: “The jury verdict that the one who maintained the road was 14 times as causally negligent as the person who chose it as an egress cannot stand.”¹² Apparently the plaintiff interprets this statement as merely setting aside the verdict apportionment as “grossly disproportionate.”¹³ When this court determines that the percentages attributed to the . parties in light of the facts are grossly disproportionate, the court should grant a new trial in the interests of justice.¹⁴ However, in the very next paragraph, the opinion concludes:

“In the case before us, where the plaintiff selected from among three exit routes the one in which pedestrian and vehicular traffic were commingled, and where he failed to keep a proper lookout for vehicles passing to his right while he proceeded along the route, his negligence in both respects combined was at least equal to that of the racetrack operator who built and maintained the road involved.”¹⁵

Earlier in the opinion we noted that where it appears “ \ . . that the negligence of the plaintiff is as a matter of law equal to or greater than that of the defendant, it is not only within the power of the court hut it is the duty of the court to so hold.’ ”¹⁶ Noting that frequenters of a public place are “. . . under an obligation to exercise ordinary care for their own safety,”¹⁷ we set forth, case by case, prior decisions of this court holding that the negligence of a frequenter of a public place is at least equal to or greater than that of the defendant as a matter of law.¹⁸ Following these citations to similar situations, in the same paragraph this court held the negligence of plaintiff here “was at least equal to that of the racetrack operator” and that “ [s] etting aside the jury apportionment is required.”¹⁹ Where either the appellate court or a trial court finds that the evidence does not support the apportionment made by a jury and further finds as a matter of law that the negligence of the plaintiff equals or exceeds that of the defendant, the court’s finding denies recovery to the plaintiff against such defendant.²⁰ In the case before us, that was the holding of this court in Gross v. Denow, and that holding became the law of this case on retrial.²¹ It may be argued that the mandate of this court on the first appeal, if not inconsistent with the opinion, is less explicit than the opinion is on the consequences on retrial of holding that plaintiff’s negligence is at least equal that of Midwest. We find no inconsistency between the mandate and the opinion,²² but acknowledge that the mandate might well have proceeded to state the obvious enough consequence that on retrial of the negligence issue, Midwest must be dismissed as a party defendant. However, what was not stated in the mandate was clearly held in the opinion, and we hold the trial court here was obliged to apply the mandate in the light of the opinion. The scope of the new trial authorized in Gross v. Denow was limited by what we held as a matter of law in the opinion. The trial court was required by the prior holding of this court to grant Midwest’s motion for summary judgment, and the denial of this constitutes reversible error. While the negligence of Midwest can be considered by the jury in its apportionment of the total causal negligence,²³ Midwest is entitled to be dismissed as a defendant in the case. As our court has held, “ [Wjhere there is no issue of fact that should be tried or where there is an issue of law that can be determined so as to conclude the case, summary judgment should be used.”²⁴ Reversal of the judgment is required, and the trial court is directed to grant Midwest’s motion for summary judgment and to grant a new trial on the issue of negligence as between the plaintiff and the defendant Denow.

By the Court. — Judgment reversed and cause remanded with directions to the trial court to grant defendant-appellant Midwest’s motion for summary judgment, and for further proceedings not inconsistent with this opinion.

1 Gross v. Denow, 61 Wis.2d 40, 212 N.W.2d 2 (1973).

2 Sec. 274.33, Stats., provides: “The following orders when made by the court may be appealed to the supreme court:

“(3) When an order . . . denies an application for summary judgment.”

3 See. 274.33(3), Stats., makes appealable an order which sustains or overrules a demurrer.

4 “An appeal from the judgment brings up for review the order sustaining the demurrer upon which it is based.” Sawejka, v. Morgan, 56 Wis.2d 70, 74, 201 N.W.2d 528 (1972).

5 Richie v. Badger State Mut. Casualty Co., 22 Wis.2d 133, 137, 138, 125 N.W.2d 381 (1963). See also: Maxwell v. Kennedy, 50 Wis. 645, 7 N.W. 657 (1880), where this court held that a defendant waived his right to review of the trial court order granting a new trial, not because he participated in the new trial, but because he did so without in any way preserving his claim of error.

6 M. & M. Realty Co. v. Industrial Comm., 267 Wis. 62, 64 N.W.2d 413 (1964); Litzen v. Eggert, 238 Wis. 121, 297 N.W. 382 (1941); Barlow & Seelig Mfg. Co. v. Patch, 236 Wis. 223, 295 N.W. 39 (1940). See also: Eisenberg v. ILHR Department, 59 Wis.2d 98, 207 N.W.2d 874 (1973); State ex rel. Reynolds v. Breidenbach, 205 Wis. 483, 237 N.W. 81 (1931); State ex rel. Lisbon Town Fire Ins. Co. v. Crosby, 240 Wis. 157, 2 N.W.2d 700 (1942).

7 Barlow & Seelig Mfg. Co. v. Patch, supra, n. 6, at 225.

8 Gross v. Denow, supra, n. 1, at 62.

9 State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 623, 624, 79 N.W. 1081 (1899).

10 See: G. Currie and N. Heffernan, Wisconsin Appellate Practice Procedure (1975); Currie, Aspects of Appellate Procedure, 1955 Wis. L. Rev. 554. See also: Johann v. Milwaukee Electric Tool Corp., 270 Wis. 573, 579, 72 N.W.2d 401 (1955), where appellant moved for rehearing but failed to include as grounds for the motion an ambiguity in the mandate and opinion of which he later complained. This court held: “If defendant had considered that there was any ambiguity in the opinion and mandate on this point, that was the proper time to raise the point, and not before the trial court during the course of the second trial.”

11 Gross v. Denow, supra,, n. 1.

12 Id. at 49.

13 Gross disproportion in the jury’s apportionment of negligence is one of three bases for setting aside a jury’s apportionment of negligence. The other two bases are (1) if as a matter of law the plaintiff’s negligence equaled or exceeded that of the defendant, and (2) if there was such a complete failure of proof that the verdict could only be based upon speculation. Britton v. Hoyt, 63 Wis.2d 688, 693, 218 N.W.2d 274 (1974); Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 84, 211 N.W.2d 810 (1973).

14 Britton v. Hoyt, supra,, at 693; Firkus v. Rombalski, 25 Wis.2d 352, 362, 130 N.W.2d 835 (1964).

15 Gross v. Denow, supra,, n. 1, at 50, 51.

16 Id. at 49, quoting Skybrock v. Concrete Construction Co., 42 Wis.2d 480, 490, 167 N.W.2d 209 (1969).

17 Id. at 49, citing Powless v. Milwaukee County, 6 Wis.2d 78, 86, 94 N.W.2d 187 (1959).

18 Skybrock v. Concrete Construction Co., supra, n. 16, at 490; Powless v. Milwaukee County, supra, n. 17, at 86; Rewolinski v. Harley-Davidson Motor Co., 32 Wis.2d 680, 684, 146 N.W.2d 486 (1966); Klein v. Montgomery Ward & Co., 263 Wis. 317, 67 N.W.2d 188 (1963).

19 Gross v. Denow, supra, n. 1, at 61.

20 Britton v. Hoyt, supra, n. 13, at 693.

21 See: Luhman v. Evergreen Cemetery Asso., 9 Wis.2d 479, 483, 101 N.W.2d 662 (1960).

22 In State ex rel. Reynolds v. Breidenbaeh, supra, n. 6, this court held that the trial court is required to interpret the mandate in light of the opinion. But see: M. & M. Realty Co. v. Industrial Comm., supra, n. 6, in which the court held that the taking of new testimony by an administrative agency is not inconsistent with a circuit court mandate, but stated: “There is good authority for holding that in a situation where a mandate makes no reference to the opinion and is inconsistent with the opinion the mandate prevails.”

23 Pierringer v. Hoger, 21 Wis.2d 182, 192, 124 N.W.2d 106 (1963). Compare, McCraw v. Witynshi, 43 Wis.2d 313, 322, 168, N.W.2d 537 (1969).

24 Bolen v. Bolen, 39 Wis.2d 91, 94, 158 N.W.2d 316 (1968); Hardscrabble Ski Area v. First Nat. Bank, 42 Wis.2d 334, 166 N.W.2d 191 (1969). See also: Capt. Soma Boat Line, Inc. v. Wisconsin Dells, 56 Wis.2d 838, 203 N.W.2d 369 (1973) ; Schnabl v. Ford Motor Co., 54 Wis.2d 345, 195 N.W.2d 602, 198 N.W.2d 161 (1972).