By: dmc-admin//June 16, 2004//
The court wisely reversed the court of appeals in this case. To have affirmed, the court would have had to overrule its precedent in Bleyer v. Gross, 19 Wis.2d 305, 120 N.W.2d 156 (1963), a case with nearly identical facts, right down to the permanent shoulder injury. In addition, there was no fatal contradiction in the testimony.
The court was also wise to state explicitly that the no case rule should be reserved for the most extreme cases.
However, even if a seemingly appropriate, extreme case were to arise, the plaintiff should make the argument that the no case rule should be abrogated and preserve that argument for potential review in the Supreme Court.
As the court noted, in 35 years, no published Wisconsin court decision has ever actually applied the rule to uphold a finding that testimony was fatally contradictory.
Even in Ianni v. Grain Dealers Mut. Ins. Co., 42 Wis.2d 354, 166 N.W.2d 148 (1969), the case in which adopted the Supreme Court adopted the rule, the court declined to apply it.
What the court did not acknowledge is the sheer paucity of any support for the rule in the first place.
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Although the court in Ianni referred to it as the general rule, citing 32A C.J.S., Evidence 1043 (1964)(renumbered 32A C.J.S., Evidence 1340 (1996)), it was, in fact, not the general rule, but an oddity known only in Missouri.
Like Wisconsin, Missouri rarely applies the rule. It did so in Steele v. Kansas City Southern Ry. Co., 175 S.W.177 (Mo.1915), and Pritt v. Terminal R.R. Assn of St. Louis, 224 S.W.2d 119, 123, 359 No. 896 (Mo.1949).
More recently, it applied the rule in a criminal case (where the rule has more to commend it, given the greater burden of proof on the States part), State v. Williams, 481 S.W.2d 1 (Mo.1972). However, as noted, even in Missouri, it is honored more in the breach.
The general rule is actually that, even when testimony is conflicting and contradictory, it is still for the trier of fact to determine the truth, even when a partys testimony is involved, rather than a witness. Given that this is what the appellate courts invariably decide is appropriate anyway, a strong argument can be made in favor of abrogation of the no case rule altogether.
– David Ziemer
David Ziemer can be reached by email.