Ballard v. Lumbermens Mut. Cas. Co.

• Citation: 33 Wis.2d 601,148 N.W.2d 65
• Parties: Lorna BALLARD et al., Respondents, v. LUMBERMENS MUTUAL CASUALTY CO., a foreign corp., Appellants.
• Decision Date: 31 January 1967
• Court: United States State Supreme Court of Wisconsin

Page 65

148 N.W.2d 65

33 Wis.2d 601

Lorna BALLARD et al., Respondents, v. LUMBERMENS MUTUAL CASUALTY CO., a foreign corp., Appellants.

Supreme Court of Wisconsin Jan. 31, 1967.

Hayes & Hayes, Milwaukee, for appellants.

Lowry, Hunter & Tikalsky, Waukesha, for respondents.

HEFFERNAN, Justice.

The trial judge stated when ruling on the defendant's motions after verdict:

'The damages awarded by the Jury are high. However, there is credible evidence to sustain them, and the Court cannot say that they are excessive.'

The review of this court:

'* * * must be based on the rule that when there is any credible evidence which under any reasonable view supports the jury finding especially when the verdict has the approval of the trial court, it should not be disturbed. This is another way of saying the evidence must be viewed in the light most favorable to the verdict.' Springen v. Ager Plumbing & Heating, Inc. (1962), 19 Wis.2d 487, 489, 120 N.W.2d 692, 693.

We have also said:

'The amount of damages awarded is a matter resting largely in the discretion of the jury. The verdict will not be upset merely because the award was large or because the reviewing court would have awarded a lesser amount, but rather only where it is so excessive as to indicate that it resulted from passion, prejudice, or corruption, or a disregard of the evidence or applicable rules of law. Evidence must be viewed in the light most favorable to the verdict. A damage verdict which has been approved by the trial court will not be disturbed if 'there exists a reasonable basis for the trial court's determination after resolving any direct conflicts in testimony in favor of plaintiff. " Kablitz v. Hoeft (1964), 25 Wis.2d 518, 525, 131 N.W.2d 346, 350.

While we have repeatedly said that this court will view with particular favor a verdict that has the trial judge's approval, that attitude on the part of the supreme court presupposes that there has been some analysis of the evidence underlying the verdict and that such analysis appears in the trial judge's memorandum. We stated in Boodry v. Byrne (1964), 22 Wis.2d 585, 589, 126 N.W.2d 503, 505:

'The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff.'

It is obviously of great importance that review be made by the trial judge, whose determination is relatively contemporaneous with the trial and the verdict of the jury and that there appear in his memorandum opinion an indication of the rationale used in exercising his discretion to sustain or set aside the jury verdict. He is far better able than we are to analyze the evidence and to make an appraisal of the reasonableness of damages. As we said in Moritz v. Allied American Mut. Fire Ins. Co. (1965), 27 Wis.2d 13, 24, 133 N.W.2d 235, 241:

'There is no analysis of the evidence and the trial court has not given the parties or this court the benefit of his observations bearing in mind that he not only sees the parties and other witnesses but hears their testimony. We can only read from the transcript.

"Because of the advantage of personal observation enjoyed by the trial judge * * * his order will be reversed * * * only if we find an abuse of discretion on the part of the trial court.'

'A trial court reviewing a personal-injury jury verdict and finding such a verdict excessive should state its reasons for its determination. In the absence of such an analysis this court on appeal must, as here, review the entire record as a matter of first impression * * *. In so doing, this court, of course, applies the same criteria for determining whether or not a verdict is excessive as govern review of the verdict by the trial court in the first instance.'

These standards set forth above apply with equal force where the trial judge has found the verdict not excessive. The trial judge in the instant case, while stating that the verdict was supported by credible evidence, neither analyzed any particular evidence nor stated the rationale upon which he reached his conclusion. The absence of any such discussion deprives the plaintiffs of the additional weight that is given to a verdict that has the approval of the trial judge. We, therefore, look to the evidence ab initio, giving no weight to the conclusion of the trial judge that the evidence supports the verdict or that the damages are not excessive. We are obliged, however, to resolve all conflicts in the testimony in a light most favorable to supporting the jury's verdict, i.e., is there any credible evidence to support it. Springen v. Ager Plumbing & Heating, Inc., supra, 19 Wis.2d page 489, 120 N.W.2d 692. In light of these principles, we turn to the disputed items of damage.

Were the damages awarded for past and future wage losses excessive

Mrs. Ballard was a part-time cashier and clerk working for Robert Hall, a retail clothier. She had been so employed for several years, and there was clear and convincing evidence that she would have been able to continue to work at even longer hours at a higher wage rate after the accident. Two physicians testified that the disabilities Lorna Ballard sustained were permanent, and she stated that after her injuries she was easily fatigued and could not work the hours that were previously expected of her. Other employees in the store testified to her appearance of fatigue, and the assistant manager said that her ability to work efficiently diminished after the accident. The testimony is undisputed that the plaintiff sustained a diminution in her earning power and that such diminution was reflected in her reduced wages after the accident. The defendant contends that the award of $4,000 for loss of earnings is excessive, since there is no proof of the permanency of her opportunity to work at Robert Hall or elsewhere, and that the diminution of earnings is not sustained by the evidence. The defendant, of course, errs if he contends that damages for the inability to work are to be measured in terms of loss of earnings. The proper test is whether the plaintiff's capacity to earn has been impaired, although the comparison of the earnings after the accident as compared to the earnings before the accident is some evidence of earning capacity. Boodry v. Byrne (1964), 22 Wis.2d 585, 594, 126 N.W.2d 503.

'In determining past and future loss of earning capacity the question is not whether plaintiff would have worked, by choice. He is entitled to compensation for his lost capacity to earn, whether he would have chosen to exercise it or not.' Schreiber, Damages in Personal Injury and Wrongful Death Cases (PLI, 1965), p. 36; see also Ghiardi, Personal Injury Damages in Wisconsin, p. 123, sec. 8.01.

Accordingly, there need be no proof of the availability of future employment if there is proof of a lessened capacity. Impairment of the plaintiff's capacity to earn was established by the testimony of two physicians that her disability is permanent and that her inability to work to the same capacity as before is the result of the accident. Where there is, as here, competent evidence that the injury is permanent, the jury could properly draw the inference that there was a compensable impairment of earning capacity. Reinke v. Woltjen (Nov. 29, 1966), 32 Wis.2d 653, 661, 146 N.W.2d 493.

We also conclude that the amount of the damage award is supported by the evidence. The plaintiff's wage record shows that in 1963, the last full year she worked before the accident, she earned $1,577.49, and in 1965, the first full year she worked after the accident, she earned $1,329.78, or a difference of $247.71. Taking a view of the evidence most favorable to Lorna Ballard, as we must, it would appear that this difference represents a wage loss for 1965 that is fairly attributable to the accident.

In addition, she suffered a 1964 wage loss in the amount of $260.40 as the result of a total inability to work. This loss is supported by ample credible evidence consisting of testimony and payroll summaries. Thus, the plaintiff, before trial, sustained a wage loss of something over $500. The jury awarded a total sum of $4,000 for past and future loss of earnings. We find it difficult to conclude that under the circumstances an award of under $3,500 for future wage losses is excessive. If that sum is prorated on the basis of the annual earnings diminution of $240 per year, it will be seen that the jury awarded loss of earnings for approximately 15 years, despite the fact that Lorna Ballard was only thirty-eight years of age and had a life expectancy of thirty-nine more years. Under the circumstances, it cannot be said that the jury in regard to this item made an award that was excessive or even particularly generous.

In Reinke v. Woltjen, supra, we have recently considered the standards by which past and future loss of earnings are to be measured. No good purpose would be served by repeating in extenso that discussion. Suffice it to say that the 'impairment of earning capacity is generally to be arrived at by comparing what the injured party was capable of earning at or before the time of the injury with what he was capable of earning after it occurred.' Ghiardi, Personal Injury Damages in Wisconsin, p. 133, sec. 8.04. Applying these standards it is clear that the damages awarded by the jury are supported by

credible evidence in the record. Does the evidence sustain

the jury's award of $10,000 for past and future

pain, suffering, and disability

The verdict properly lumped the item of damages for past and future pain and suffering into one award. Nevertheless, different testimony is required to support award of damages for these two periods. We held in Bethke v. Duwe (1950), 256 Wis. 378, 383, 41 N.W.2d 277, that medical testimony...