Jolitz v. Fintch

• Decision Date: 09 November 1938
• Citation: 229 Wis. 256,282 N.W. 87
• Parties: JOLITZ v. FINTCH et al. WENDT v. SAME.
• Court: Wisconsin Supreme Court

229 Wis. 256

282 N.W. 87

JOLITZ

v.FINTCH et al.

WENDT

v.SAME.

Supreme Court of Wisconsin.

Nov. 9, 1938.

Appeals from orders of the County Court of Shawano County; F. A. Jaeckel, Judge.

Affirmed.

Actions by Herman Jolitz and Edgar Wendt against H. R. Fintch and the General Casualty Company commenced April 22, 1937, and tried together. From orders granting new trials unless plaintiffs would accept amounts less than awarded by the jury entered December 28, 1937, the plaintiffs appeal. The material facts are stated in the opinion.

Eberlein & McCarthy, of Shawano, for appellants.

Benton, Bosser, Becker & Parnell, of Appleton, for respondents.

FOWLER, Justice.

The action arose out of a collision on the highway of an automobile owned and driven by the plaintiff Wendt with one owned and driven by the defendant Fintch. The plaintiff Jolitz was a guest riding in Wendt's car. Both Wendt and Jolitz were injured in the collision and each sued Fintch and his insurer to recover for his injuries, alleging they were caused by negligence of Fintch. On the trial it was admitted that the injuries were so caused and that Wendt and Jolitz were free from negligence.

The only questions submitted to the jury were as to damages. The jury assessed the damages of Jolitz, for pain and suffering, $2,000; for loss of earnings and permanent injury, $5,000. They assessed those of Wendt, for pain and suffering $500; for loss of earnings and permanent injury, $1,500. The defendants moved for new trials on the ground that the awards are excessive. The court ordered a new trial unless in the Jolitz case the plaintiff would stipulate to accept judgment for $500 for pain and suffering and $1,500 for loss of earnings and permanent injury; and so ordered in the Wendt case unless the plaintiff would stipulate to accept judgment for $500 for pain and suffering and $250 for loss of earnings and permanent injury. Both plaintiffs refused so to stipulate and each appeals from the order granting a new trial in his case. The court expressly found that the sums of $500 and $1,500 in the Jolitz case and $250 in the Wendt case were the lowest sums a jury might properly award for the items of injury for which the amounts found were assessed.

The attack upon the orders is made upon two grounds: (1) The rule that obtains in this state that when an assessment of damages is excessive and a motion for a new trial is made by the defendant on that ground, the court may give to the plaintiff the option to avoid a new trial by accepting the lowest amount that a jury might properly award on the evidence adduced upon the trial, is wrong and should be modified to permit a plaintiff to avoid a new trial by accepting such amounts as the trial court considers that the jury should have awarded. (2) The damages assessed by the jury are not excessive.

[1][2][3] (1) The rule stated was established in Heimlich v. Tabor, 1905, 123 Wis. 565, 102 N.W. 10, 68 L.R.A. 669. Although generally adhered to it was departed from in a few cases prior to the decision of Gerlach v. Gruett, 1921, 175 Wis. 354, 185 N.W. 195, 18 A.L.R. 1155, but was there reaffirmed and has been consistently adhered to ever since. The trial judge in the Gerlach Case, who by the way, was the writer of this opinion, relying on departures from the rule by this court in fixing the amount of the judgment to be entered and departures by some trial courts in fixing the amount that had met the approval of this court, ventured to apply his own idea of justice where a verdict was excessive, but his venture failed. See cases cited in the Gerlach Case. See, also, Muska v. Apel, 1930, 203 Wis. 389, 232 N.W. 593, and the cases cited therein, and the later cases, Lehner v. Berlin Publishing Co., 211 Wis. 119, 246 N.W. 579;West v. Johnson, 202 Wis. 416, 233 N.W. 94;Reykdal v. Miller, 216 Wis. 561, 257 N.W. 604. Counsel keep attacking the rule apparently in ignorance of or ignoring the basis of it, which is that the only way in which the defendant's right of a jury trial as to the amount of damages can be constitutionally denied is to deny him such trial in circumstances such that he is not injured, and therefore not prejudiced, by such denial. If he is denied such trial by giving the plaintiff the option to take the lowest amount a jury might properly have awarded on the evidence adduced before them, he is not prejudiced. By giving the plaintiff the option to accept any other amount the defendant would be prejudiced and a jury trial could not constitutionally be denied him. We have discussed the rule and referred to the basis of it as we have in the hope that it may cause counsel in the future to refrain from attacks upon it.

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