Estate of Lynn Boxhorn v. State Farm Mut. Auto. Ins. Co., 94-1245
| Decision Date | 09 August 1995 |
| Docket Number | No. 94-1245,94-1245 |
| Citation | 196 Wis.2d 644,539 N.W.2d 335 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Estate of Lynn BOXHORN, by personal representative, Elleen L. Rieth, Plaintiffs-Respondents, Louis C. BOXHORN, Plaintiff-Respondent-Cross Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant-Cross Respondent, Hans H. Meves, American Family Mutual Automobile Insurance Company and Wisconsin Physicians Service, Defendants. |
| Court | Wisconsin Court of Appeals |
Before ANDERSON, P.J., and BROWN and SNYDER, JJ.
Hans Meves' automobile struck Lynn Boxhorn as she was walking to her car. The jury found Meves 100% negligent in causing Lynn's death and awarded her father, Louis C. Boxhorn, $525,000 for past pain and suffering, loss of society and companionship, and for pecuniary loss occasioned by Lynn's death. State Farm Mutual Automobile Insurance Company appeals from the judgment in favor of Boxhorn. It argues that it was error to refuse to give the right-of-way instruction, that a claim for negligent infliction of emotional distress should not have been submitted to the jury, that damages were excessive, and that the verdict was perverse and warrants a new trial in the interest of justice. Boxhorn cross-appeals, claiming that because of his offer of settlement, double costs and interest should have been allowed. We affirm the judgment except for the damages award for past pain and suffering; we reverse that portion of the judgment and order a new trial on the issue of damages for past pain and suffering.
For the purpose of visiting a garage sale, Lynn parked her car facing west on the shoulder of the westbound side of the road. Boxhorn waited in the car for Lynn to return. As Lynn was walking westerly toward the driver's side of her car, she was struck by Meves' westbound automobile. The trial court instructed the jury on lookout using WIS J I--CIVIL 1055, 1070, and 1095. 1 State Farm argues that the jury should have been instructed on right-of-way to make clear that Lynn had the duty to yield the right-of-way to vehicular traffic on the road. See Staples v. Glienke, 142 Wis.2d 19, 31-32, 416 N.W.2d 920, 925-26 (Ct.App.1987) ().
The trial court has wide discretion in issuing jury instructions. Wingad v. John Deere & Co., 187 Wis.2d 441, 454, 523 N.W.2d 274, 279 (Ct.App.1994). If the instructions adequately cover the law, there is no erroneous exercise of discretion when the court refuses to give a requested instruction, even if the proposed instruction is correct. Id. We will affirm the trial court's exercise of discretion if the determination is one a reasonable judge would reach and consistent with applicable law. Id. at 454-55, 523 N.W.2d at 280. Ultimate resolution of the appropriateness of giving a particular instruction turns on a case-by-case review of the evidence, with each necessarily standing on its own factual ground. State v. Vick, 104 Wis.2d 678, 690-91, 312 N.W.2d 489, 495 (1981).
The only right-of-way instruction offered by State Farm was WIS J I--CIVIL 1250. 2 That instruction deals with a pedestrian's obligation to yield the right-of-way when attempting to solicit a ride from the operator of a motor vehicle. 3 The trial court correctly determined that the factual circumstances here did not involve an attempt to solicit a ride. The proposed instruction was not warranted.
The trial court explained that right-of-way considerations were covered by the combined lookout instructions. By the lookout instructions the jury was told that a driver must maintain a sufficient lookout to yield the right-of-way to pedestrians with the statutory right-of-way in a marked or unmarked crosswalk. Conversely, the jury was told that when a pedestrian is in the roadway at a place other than a crosswalk, it is the pedestrian's duty to maintain lookout so as to yield the right-of-way to cars. "Error cannot be predicated upon a refusal to give a requested instruction, even though it correctly states the law, where the substance of the requested instruction is embodied in another instruction." Peot v. Ferraro, 83 Wis.2d 727, 732, 266 N.W.2d 586, 589 (1978).
A factual dispute existed as to whether Lynn was in the roadway when she was struck. Given the evidence, we conclude that the instructions given adequately advised the jury of the corresponding duties to yield the right-of-way. On the instructions given, the jury was able to make a reasonable analysis of evidence. The trial court did not erroneously exercise its discretion in refusing to give the right-of-way instruction.
State Farm contends that the jury failed to follow the jury instructions. It points out that the jury awarded $100,000 for loss of society and companionship despite the fact that it was instructed that a person may only recover $50,000 for such a claim. State Farm argues that the jury's answer suggests that the verdict is perverse and that the jury was incited by passion. Perversity cannot be inferred from the jury's $100,000 award for loss of society and companionship. While the jury was instructed that the law limits recovery to $50,000, it was also advised that the dollar limit is not a measure of damage. The jury followed the instruction to determine a fair amount of compensation without regard to the limitation.
State Farm also argues that the jury's initial inconsistency in answering the liability questions and the subsequent changes it made to those questions confirms that the jury was driven by passion and prejudice. The initial verdict returned by the jury found that Lynn was not causally negligent but, contrary to the instructions in the verdict not to answer the apportionment question, the jury apportioned liability 99% against Meves and 1% against Lynn. After being instructed by the trial court to read the introductory portions of the verdict questions carefully, the jury returned to deliberations. The jury then sent out a note asking if it could change its answer to the question as to whether Lynn was negligent. The trial court instructed the jury to decide its answers in accordance with the evidence and instructions. After further deliberation, the jury returned a verdict finding that Lynn was not negligent.
We conclude that the difficulties the jury experienced in answering the verdict questions was not the result of its inability to follow the jury instructions. The trial court handled the entire matter impartially and reinstructed the jury appropriately. Potential prejudice is presumptively erased when admonitory instructions have been properly given by the trial court. Sommers v. Friedman, 172 Wis.2d 459, 467-68, 493 N.W.2d 393, 396 (Ct.App.1992). Ultimately, the jury was able to complete the verdict without inconsistency. The trial court polled the jurors and there is no suggestion that the panel was confused as to the answers. No grounds exist for a new trial in the interest of justice.
We next address State Farm's argument that Boxhorn did not suffer any compensable pecuniary loss because Boxhorn now performs for himself the household services Lynn had provided. 4 State Farm also argues that the $300,000 award for pecuniary loss was excessive.
The jury heard how Lynn, age forty-six, maintained a household with her father, age eighty-one. She took over all the household chores when her mother died and changed to third-shift employment so she could be at home to care for Boxhorn. She cleaned house, did snow removal, cut the grass, helped with the garden, did the grocery shopping, paid for groceries out of her own money, cooked, did laundry and did all the driving. Lynn had nursed her father through seventeen operations, made sure he returned to the doctor for necessary check-ups and monitored his medications. A vocational expert testified that if Boxhorn purchased such services it would cost approximately $16,000 to $18,000 a year.
At the time of trial, Boxhorn had not yet hired anyone to perform the services Lynn had provided. However, we reject State Farm's notion that this precludes an award of pecuniary loss. Pecuniary injury can be measured as "such sum as will equal the value of such support and protection of the [surviving family member] as the [deceased] would have furnished during the time [the deceased] probably would have lived." Schaefer v. American Family Mut. Ins., 182 Wis.2d 380, 385-86, 514 N.W.2d 16, 19 (Ct.App.1994), aff'd as modified, 192 Wis.2d 768, 531 N.W.2d 585 (1995) (quoting Maloney v. Wisconsin Power, Light Heat Co., 180 Wis. 546, 547, 193 N.W. 399, 399 (1923)). The household services provided by Lynn have economic value even though no compensation is paid among family members. See Boles v. Milwaukee County, 150 Wis.2d 801, 816-17, 443 N.W.2d 679, 685 (Ct.App.1989).
"Pecuniary injury" as used in § 895.04(4), STATS., is broadly defined and permits the jury to consider a very wide range of factors in determining the amount of pecuniary loss. Estate of Holt v. State Farm, 151 Wis.2d 455, 460, 444 N.W.2d 453, 455 (Ct.App.1989). Nothing requires the jury's function to be limited by the actual expenditure of money. The critical question was whether Boxhorn had a "reasonable expectation of pecuniary advantage" by Lynn remaining alive. Id. at 459, 444 N.W.2d at 454. Lynn's services could constitute a pecuniary advantage. A jury question existed and there was no error in submitting the claim to the jury.
In reviewing damages awarded by a jury, we may not substitute our judgment for that of the jury, but rather must determine whether the award is within reasonable limits. Badger Bearing v. Drives & Bearings, 111 Wis.2d 659, 670, 331...
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