Neff v. Industrial Commission

CuRRiE, C. J.

(concurring). The court’s opinion holds that plaintiff Neff’s testimony, of his willingness to drop out of Northland College and accept a full-time job if one were offered to him, was a self-serving declaration of future intention which the commission was not bound to accept as a verity. This facet of the case brings into focus an oft-repeated rule laid down by this court that positive uncontradict-ed testimony as to the existence of some fact, or the happening of some event, cannot be disregarded by a court or jury in the absence of something in the case that discredits the same or renders it unreasonable against probabilities. Pagel v. Holewinski (1960), 11 Wis. (2d) 634, 641, 106 N. W. (2d) 425; State v. Public Service Comm. (1962), 16 Wis. (2d) 231, 238, 114 N. W. (2d) 454; Thiel v. Damrau (1954), 268 Wis. 76, 85, 66 N. W. (2d) 747; Schulz v. General Casualty Co. (1939), 233 Wis. 118, 129, 288 N. W. 803; Quass v. Milwaukee Gas Light Co. (1919), 168 Wis. 575, 578, 170 N. W. 942; Engmann v. Estate of Immel (1884), 59 Wis. 249, 251, 252, 18 N. W. 182. See also Johnson v. Aetna Life Ins. Co. (1914), 158 Wis. 56, 61, 147 N. W. 32.

In the instant case this testimony by Neff as to his willingness to quit college, if a full-time job were offered him, is, in the writer’s opinion, covered by the proviso of the rule that permits the finder of fact to disregard positive uncontra-dicted testimony when it is against reasonable probabilities. This type of situation is frequently presented in automobile accident cases where one driver is killed or suffers amnesia *218and the only testimony given is by the other driver or by his guest passengers. For an example of this, see Voigt v. Voigt (1964), 22 Wis. (2d) 573, 126 N. W. (2d) 543. In this type of situation the trier of facts may disregard the testimony of interested parties or witnesses which is contradicted by a reasonable inference drawn from physical facts. Pagel v. Holewinski, supra, at page 641. Even where the physical facts are such as not to give rise to a reasonable inference which contradicts the testimony of the interested parties or witnesses, the trier of the facts should be permitted to disregard such uncontradicted testimony.

In my opinion, the rule in question should be modified with respect to uncontroverted testimony given by interested parties or witnesses as distinguished from disinterested witnesses. The rule is a proper one to invoke with respect to uncontroverted testimony of even an interested party or witness where the fact testified to is subject to corroboration or contradiction by other evidence. In such a situation it can be assumed that the party adversely affected by such testimony would have controverted it if untrue. However, where such uncontroverted testimony of an interested party or witness relates to a fact with respect to which it would be impossible to produce any other evidence of contravention, the trier of the fact should be permitted to reject such testimony if it concludes that it is false. The credibility of an interested party or witness in such a situation should be exclusively for the trier of fact.