Girtz v. Oman
| Decision Date | 26 November 1963 |
| Citation | 124 N.W.2d 586,21 Wis.2d 504 |
| Parties | Gertrude E. GIRTZ, Plaintiff-Respondent, v. Robert W. OMAN et al., Defendants-Respondents, Carriers Insurance Exchange, a foreign insurance corp., Appellant. Robert H. GIRTZ, Plaintiff-Respondent, v. Robert W. OMAN et al., Defendants-Respondents, Carriers Insurance Exchange, a foreign insurance corp., Appellant. |
| Court | Wisconsin Supreme Court |
Petersen, Sutherland, Axley & Brynelson, Donald F. Mitchell, Madison, for appellant.
Oldenburg & Peckham, Madison, for plaintiff-respondent Gertrude E. Girtz.
Swingen, Stern & Lenahan, Madison, for plaintiff-respondent Robert H. Girtz.
The questions raised on appeal are:
(1) Whether there is any evidence that the accident caused loss of income to Girtz.
(2) Whether the trial court committed prejudicial error in permitting respondents to amend their complaints to include additional allegations of negligence.
(3) Whether the jury award of $14,917 to Gertrude Girtz is supported by evidence in the record.
(4) Whether a new trial should be ordered in the interest of justice.
(1) Loss of Income
Robert Girtz testified that he was self-employed and was engaged in the trucking business; he owned and operated his own semi-truck. This was not the one involved in the collision. Girtz stated he earned between $4,500 to $5,000 a year, less 10 percent investment in his truck. He stated that in the first year after the accident he did not operate the truck and that he did not lose anything except the loss of his investment in the truck. In the second year he made between $300 and $400; he quit the trucking business in 1962 when he sold his semi.
The record shows that the injury sustained by Girtz as a result of the accident was a laceration of the side of the head. He testified at the trial that he had pains in his neck and chest which bothered him occasionally. He also stated that he had become nervous since the accident. Based upon this evidence the jury awarded him $500 for pain and suffering and $500 for permanent injuries. It also found that his loss of earnings prior to trial was $4,000, which award is attached on appeal.
Damages for loss of earnings are recoverable if Girtz was unable to perform his usual work as a truck driver, which inability was caused by the accident in question. Such a finding must be supported by some evidence in the record. Smee v. Checker Cab Co. (1957), 1 Wis.2d 202, 207, 83 N.W.2d 492.
In the present case, the record only shows that Girtz did not perform his usual work as a truck driver; it does not contain any evidence that Girtz was unable to work and that this inability was caused by the accident. The injuries received by Girtz were minor, and an inference cannot be drawn from them that he in any way was incapacitated from performing his normal work. Girtz lives in Indiana, and although the record shows he did not pursue his trucking business he did drive at least 4,000 miles per year since the accident. There is also no testimony from his treating physician that he could not work or was medically advised not to work during the period in question.
Therefore, the record does not support the jury finding that Girtz's loss of earnings resulted from the accident, and this finding must be set aside.
(2) Amendment of Complaint
The original complaints brought by Robert and Gertrude Girtz alleged that Robert Oman was negligent as to speed, lookout, and management and control. There was no motion by appellant, then defendant, to make the complaint more definite and certain.
At the commencement of trial on March 7, 1963, Robert and Gertrude Girtz, by their respective attorneys, moved the trial court to have their complaints amended to allege negligence as to invading the lane of travel of Robert Girtz, improper passing and failing to sound horn. Appellant claimed surprise; however, it did not seek an adjournment. The trial court allowed the amendments but put only a general question of negligence in the special verdict. Now on appeal appellant claims that prejudicial error was committed by the trial court in permitting the complaint to be amended.
Sec. 269.44, Stats., provides:
This section gives the trial court wide discretion as to amendment of pleadings. Grady v. Hartford Steam Boiler Insp. & Ins. Co. (1954), 265 Wis. 610, 617, 62 N.W.2d 399; Kuester v. Rowlands (1947), 250 Wis. 277, 282, 26 N.W.2d 639.
The original complaint of Gertrude Girtz states:
The original complaint of Robert Girtz contains substantially the same allegations.
From these allegations it is evident that the general position of plaintiffs was that Oman was negligent in some regard in attempting to pass the Girtz vehicle. The particularities surrounding the accident were learned by discovery examinations. Allowance of amendments lies within the sound discretion of the trial court. These amendments of the complaints were allegations of more specific acts of negligence of Oman in his attempt to pass the Girtz vehicle. They were still within the general position taken by plaintiffs in their original complaints. In the absence of the amended complaints, the evidence offered at the trial would have been admissible because it directly bears on the acts of negligence alleged in the original complaints. Also, the special verdict in this case did not contain any specific questions of negligence but contained only a general question of negligence as to each driver. Under these circumstances the amended complaints did not prejudice appellant. Its defenses which were based on the facts surrounding the accident learned by discovery examinations would have remained the same. Appellant does not show any abuse of discretion on the part of the trial court in permitting Gertrude and Robert Girtz to amend their respective complaints. Appellant's contention is without merit.
(3) Award to Gertrude Girtz
Appellant claims that the record does not contain sufficient evidence to sustain the jury award of $14,917 to Gertrude Girtz for her injuries sustained as a result of the accident. It contends that the verdict is excessive and that appellant should be granted the option of remitting the excess over and above such sum as we deem reasonable or of having a new trial on the issue of damages. It claims $10,000 is a reasonable sum.
The record shows substantial evidence which supports the jury award of $14,917. Mrs. Girtz, fifty-five years of age, was thrown from the pickup and was rendered unconscious. When she became conscious she was lying in front of the dual wheels of the semi. She was rushed to St. Mary's Ringling Hospital,...
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