159 N.W.2d 18 (Wis. 1968), Leatherman v. Garza

Citation:159 N.W.2d 18, 39 Wis.2d 378
Opinion Judge:The opinion of the court was delivered by: Beilfuss
Party Name:Kenneth H. LEATHERMAN, Appellant, v. Isauro GARZA et al., Respondents. (Two notices of appeal).
Attorney:For the appellant there were briefs by Stewart & Peyton, attorneys, and Harold R. Sheets of counsel, all of Racine, and oral argument by John Peyton.
Case Date:June 07, 1968
Court:Supreme Court of Wisconsin

Page 18

159 N.W.2d 18 (Wis. 1968)

39 Wis.2d 378

Kenneth H. LEATHERMAN, Appellant,

v.

Isauro GARZA et al., Respondents. (Two notices of appeal).

Supreme Court of Wisconsin.

June 7, 1968.

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Page 20

[Copyrighted Material Omitted]

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Stewart & Peyton, Racine, Harold R. Sheets, Racine, of counsel, for appellant.

[39 Wis.2d 384] LaFrance, Thompson, Greenquist, Evans & Dye, Alfred E. LaFrance and Adrian P. Schoone, Racine, for respondents Boileau and State Farm Mutual.

BEILFUSS, Justice.

Three issues are presented for determination:

(1) Was the order granting a new trial defective?

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(2) Was the plaintiff negligent as a matter of law?

(3) Is the evidence sufficient to sustain the jury's finding that the defendant Boileau was negligent?

The order granting the new trial (omitting formal parts) is as follows:

'1. That the verdict herein of September 28, 1967, be and the same is hereby set aside;

'2. That a new trial on the issue of apportionment of causal negligence only is hereby granted, the costs of the former trial to abide the outcome of the action because said verdict is contrary to law and unsupported by the evidence presented, and such new trial is required in the interest of justice,

'for the reason that the jury failed to find any negligence on the part of the plaintiff notwithstanding the testimony of the plaintiff himself as corroborated by the testimony of other witnesses that he left a position of safety on the south shoulder of State Trunk Highway 11 and walked northerly to the center of the paved portion of said highway, at a time and place when and which he knew to be a busy public thoroughfare accommodating motor vehicular traffic, thereby rendering the verdict absolving the plaintiff of negligence contrary to all of the evidence, since on the uncontradicted testimony the plaintiff was guilty of contributory negligence as a matter of law, requiring that the answers to Questions No. 5 and No. 6 of the verdict be and they hereby are changed from 'no' to 'yes' and Question No. 7 of said verdict must be re-answered by a jury at the new trial;

'and for that reason a comparison of such causal negligence of the plaintiff with that of the two individual defendants is thus required.

[39 [39 Wis.2d 385] Wis.2d 385] '3. That the damages awarded to the plaintiff by the jury are within the realm of reasonableness and no new trial on the issue of damages is required.'

The appellant contends this order for a new trial was defective because it did not sufficiently set forth the reasons for granting the new trial in the interest of justice. Where a trial court orders a new trial in the interest of justice the order must set forth the reasons for so doing in detail or incorporate by reference a memorandum decision that does so. Sec. 270.49(2), Stats.; Cary v. Klabunde (1961), 12 Wis.2d 267, 107 N.W.2d 142. 1 However, sec. 270.49(1), Stats., provides new trials may be granted on any of four grounds: '(1) Errors in the trial; (2) verdict contrary to law or evidence; (3) excessive or inadequate damages; and (4) in the interest of justice.' State v. La Fernier (1967), 37 Wis.2d 365, 371, 155 N.W.2d 93, 96.

In the order quoted above, the trial court states three grounds for granting a new trial. The court states the verdict is (1) contrary to law, (2) unsupported by the evidence, and (3) that a new trial is required in the interest of justice. The order continues by explaining why the verdict is contrary to law and unsupported by the evidence, but nowhere does it detail the reasons for finding a new trial is required in the interest of justice. If the order were to stand or fall on the sufficiency of the trial court's detailing the reasons for a new trial in the interest of justice, the order would fall.

The trial court changed the jury's answer herein on the contributory negligence question on its belief that the plaintiff was negligent as a matter of law, not because it...

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