Durham v. Pekrul, 80-697

Citation311 N.W.2d 615,104 Wis.2d 339
Decision Date03 November 1981
Docket NumberNo. 80-697,80-697
PartiesCarol DURHAM, Plaintiff-Respondent, Cross-Appellant, Petitioner, v. Anna A. PEKRUL and Boleslaus W. Pekrul, d/b/a Ann's Doll Hospital,Defendants-Appellants, Cross-Respondents and Respondents.
CourtUnited States State Supreme Court of Wisconsin

John W. Strasburg, Milwaukee, for plaintiff-respondent, cross-appellant, petitioner.

Bernard T. McCartan, Milwaukee, argued, for defendants-appellants, cross-respondents and respondents; McMorrow, McBride & Jacquart, S. C., Milwaukee, on brief.

HEFFERNAN, Justice.

This is a review of the decision of the court of appeals 1 which affirmed in part and reversed in part a judgment of the Circuit Court for Milwaukee County, GARY A. GERLACH, Circuit Judge.

The action was one for replevin of two antique dolls and for damages for their wrongful detention brought by Carol Durham against Anna A. Pekrul and Boleslaus W. Pekrul, d/b/a Ann's Doll Hospital. Trial was to a jury, which awarded the plaintiff $750 as the value of two dolls which were delivered to the doll hospital for repairs but never returned, $750 for the loss of the use of the dolls from the time of their delivery to the doll hospital in the fall of 1975 to the time of trial on January 17, 1980, and $4,500 for punitive damages. On motions after verdict, the trial court reduced the jury award for loss of use to zero and reduced the punitive damages to $2,500. Appeal was taken by the defendants from the whole of the judgment, and the plaintiff cross-appealed from the portion of the judgment which eliminated the damages for loss of use and reduced the punitive damages from $4,500 to $2,500. The court of appeals sustained the trial court's order and judgment which eliminated damages for loss of use. It found the evidence sufficient to support the jury award of $750 for the value of the dolls. However, it eliminated the entire award for punitive damages, holding inferentially that, as it viewed the evidence, the defendant's conduct could only be characterized as negligent and could not be characterized as malicious or the willful disregard of the plaintiff's rights. On the plaintiff's petition we ordered the review of the court of appeals decision. 308 N.W.2d 416.

On this review only damages for the loss of use of the dolls and punitive damages are at issue. Defendants, on the appeal, contended that the evidence was insufficient to support a jury verdict to show that the dolls had ever been delivered to the doll hospital, i. e., that the defendants had never unlawfully taken or detained the property and that, therefore, the plaintiff was entitled to nothing in respect to the value of the dolls. This position has been abandoned on appeal, and the question of whether or not there is a cause of action for replevin and for the value of the dolls is not posed on this review. In any event it is apparent that these elements of the verdict and judgment are supported by the evidence.

Because the issues were properly perceived by the court of appeals to be evidentiary, we recount as best we can from the garbled and incomplete record the sequence of the relationship between Carol Durham, the plaintiff- owner of the dolls, and Anna Pekrul, who was one of the proprietors of the doll hospital. Because the jury believed the testimony of the plaintiff in arriving at its verdict, we recite only the facts of record which support the verdict.

The testimony of Carol Durham revealed that she was the owner of two antique dolls of German make which had been given to her by her maternal and paternal grandmothers. She testified that these dolls were in mint condition except that the smaller doll's eyes needed repair so they would open and close. The larger doll needed minor repairs and its hair needed washing and brushing. She testified that, late in 1975 in the autumn she believed she took the two dolls to Anna Pekrul's doll hospital for repairs. She testified that Anna Pekrul gave her a claim check which stated on its face that the doll hospital was not responsible for articles left beyond thirty days. She testified, however, that Pekrul told her that, because of the Christmas season, they would not be ready until after Christmas, early in 1976 a period of more than thirty days. She said that, early in 1976, she telephoned the doll hospital and was told by Anna Pekrul that the dolls were not ready. Putting the most favorable construction upon her testimony, as the jury apparently did, she also testified that several months later she again telephoned and was again told by Pekrul that the dolls were not ready. She also testified, somewhat inconsistently, that in January or February of 1976 she had lost the claim check but nevertheless went to the defendants' place of business and was told that without the claim check she could not get the dolls.

Although plaintiff acknowledged the loss of the claim check, she testified that, at the time she delivered the dolls to the hospital, she made a notation in the presence of Anna Pekrul of the maker's identification number which appeared on the back of each of the dolls. This notation was made on the stub of a used claim check, which Anna Pekrul made available as business cards. Durham also testified that she later made several phone calls, but was told that without the claim check she could not get the dolls.

She stated that she sought legal counsel in January of 1978, and was advised by her attorney to again call the doll hospital. In January or February of 1978, she said, she again called the doll hospital and was told by Anna Pekrul that she was busy, apparently with Valentine's Day doll business, but that Durham should come in and together Durham and Pekrul would look around for the dolls.

She testified that sometime after Valentine's Day of 1978, she personally called at the doll hospital and was told that she could not have the dolls and that all unclaimed repaired dolls had been sold. For this reason, according to the testimony of the plaintiff, Pekrul refused to look for the dolls. During the course of this conversation between the parties at the doll hospital, the defendant, according to the plaintiff, said she had sent a letter to the plaintiff notifying her that the dolls were ready. The plaintiff, however, denied receiving any such notification.

As a consequence of her failure to get the dolls back, Durham commenced the action for replevin of the two dolls or, in the alternative, for their value and additional damages for their wrongful detention.

The defendants denied all the allegations of the plaintiff's complaint. The case was tried to a jury. The plaintiff testified as recounted above. The defendant Anna Pekrul in substance denied any recollection of ever having seen the plaintiff or her dolls. The defendant testified that her first recollection of seeing the plaintiff personally was in 1978 after all unclaimed dolls had been sold following a notice of sale which had been published in the Milwaukee Journal.

Like the testimony of the plaintiff, the defendant's testimony was garbled and inconsistent. It is difficult to glean from the testimony of the defendant whether she relied upon the assertion that she had never received the dolls or whether she was to be exonerated because the claim check was lost, whether the non-return of the dolls had not been timely brought to her attention, or whether her conduct was defensible because she had published a notice that any dolls left in her shop for over thirty days would be sold. She was unable to testify whether or not the dolls sold were those claimed by the plaintiff.

It is apparent the jury, making a choice between the two versions of the incident, both of which were inconsistent and confused, elected to believe Carol Durham in her assertion that the dolls had been delivered for repair and that for a period of more than two years she was put off and given the run-around by Pekrul, who inconsistently, according to Durham, denied that the dolls were ever in her possession, refused to surrender the dolls without a claim check even if they were in her possession, or the further alternatively claimed absolution from responsibility because the dolls were sold after the published notice.

The jury's verdict in respect to the value of the dolls was supported by the trial judge on motions after verdict and by the court of appeals. Both courts determined that there had been sufficient evidence to show that the dolls had been unlawfully withheld, and there was sufficient testimony by an expert witness, the proprietor of another doll repair shop, that the reasonable value of the dolls was $750, the amount found by the...

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  • Mucek v. Nationwide Communications, Inc., 00-3039.
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    • February 21, 2002
    ...Id. On review, it is the duty of this court to construe the evidence most favorably to the jury's verdict. Durham v. Pekrul, 104 Wis. 2d 339, 349, 311 N.W.2d 615 (1981). While there must be a reasonable relationship between the amount of compensatory and punitive damages, there is no multip......
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    ...product of passion or prejudice. Id. On review, we construe the evidence most favorably to the jury's verdict. Durham v. Pekrul, 104 Wis. 2d 339, 349, 311 N.W.2d 615 (1981). ¶ 44. When determining whether an award of punitive damages is excessive, we must consider the reasonableness of the ......
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    ...On review, "it is the duty of an appellate court to construe the evidence most favorably to the jury verdict...." Durham v. Pekrul, 104 Wis.2d 339, 349, 311 N.W.2d 615 (1981). "It is not necessary for this court to conclude that, had it been the jury, it would have so held [that the defenda......
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