Boughton v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 26 June 1959
• Citation: 7 Wis.2d 618,97 N.W.2d 401
• Parties: Esther BOUGHTON et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a foreign corporation, Respondents.
• Court: Wisconsin Supreme Court

Page 401

97 N.W.2d 401

7 Wis.2d 618

Esther BOUGHTON et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a foreign corporation, Respondents.

Supreme Court of Wisconsin.

June 26, 1959.

Rehearing Denied Oct. 6, 1959.

Wm. F. Quick, E. Ace Bernstein, Milwaukee, for appellants.

Thomas J. Regan, Milwaukee, for respondents.

BROADFOOT, Justice.

Mrs. Boughton will hereafter be referred to as the plaintiff. Upon this appeal she contends that the evidence, as shown by the record, amply supports the jury's award of damages; that a full and fair trial to an impartial fair-minded jury properly instructed was had; that the trial court failed to consider vital medical evidence and that the order for a new trial is based solely on a conflict of human judgment between the trial judge and the jury. In effect the plaintiff maintains that the court merely substituted its own judgment for that of the jury. This argument is based upon an analysis of the memorandum decision filed herein. It is contended that the trial court did not indicate that the jury verdict showed passion and prejudice on the part of the jury, nor did it recite in what manner the verdict was contrary to the evidence.

The issue on this appeal is governed by the provisions of sec. 270.49, Stats., which provides that motions may be made to set aside a verdict and for a new trial and the trial court may grant such motions upon the following grounds: (1) errors in the trial; (2) the verdict is contrary to law or the evidence; (3) excessive or inadequate damages; or (4) in the interest of justice. The order setting aside a jury verdict and granting a new trial must specify the statutory ground upon which it is based. Stating the statutory ground therein is sufficient unless the new trial is ordered in the interest of justice, in which case the reasons that prompted the court to make such order must be set forth in detail therein. Dittman v. Western Casualty & Surety Co., 267 Wis. 42, 64 N.W.2d 436. The statutory ground upon which the court based its order is that the damages were excessive. This was sufficient ground under the statute. Upon appeal such orders are not to be disturbed unless it clearly appears there has been an abuse of judicial discretion. Blong v. Ed Schuster & Co., 274 Wis. 237, 79 N.W.2d 820; Flatley v. American Automobile Ins. Co., 262 Wis. 665, 56 N.W.2d 523.

The figure selected by the trial court in granting the option is, of course low and should not be interpreted to mean that it approximates the amount of the actual damages. The record discloses that the plaintiff did sustain serious injuries as a result of the collision. She went to a hospital where X-rays were taken that disclosed no fractures. However, her physician, as well as the plaintiff, testified that she received severe bruises to the left shoulder, left thigh, groin and knee, and the left chest, and that she suffered shock, wryneck and back strain which were severe and painful. The X-rays showed an arthritic condition in the back and neck that existed prior to the date of the accident. The medical testimony indicated that the injuries she received as a result of the collision aggravated and hastened the onset of arthritis, and that because of the combination she had suffered pain to the time of the trial and will continue to suffer pain and discomfort in the future.

Prior to the date of the accident she had applied for a position as file clerk with the treasury department of the United States in its internal revenue service office in...