Jones v. Fisher

• Decision Date: 01 April 1969
• Docket Number: No. 184,184
• Citation: 166 N.W.2d 175,42 Wis.2d 209
• Parties: Aleta I. JONES, Respondent, v. Paul FISHER et al., Appellants.
• Court: Wisconsin Supreme Court

Page 175

166 N.W.2d 175

42 Wis.2d 209

Aleta I. JONES, Respondent, v. Paul FISHER et al., Appellants.

No. 184.

Supreme Court of Wisconsin.

April 1, 1969.

Schlotthauer, Johnson & Mohs, Madison, for appellants.

Jack McManus and Larry A. Haukom, Madison, for respondent.

BEILFUSS, Justice.

The defendants raise four issues:

1. Are the compensatory damages excessive?

2. Are the punitive damages excessive?

3. Was it error to require the defendants to testify as to their net income for 1966 and 1967?

4. Was it error to permit plaintiff's counsel to read portions of her adverse examination into evidence before the jury?

The defendants do not raise any issue as to the assault and battery finding. Their main thrust is that the damages, both compensatory and punitive, are excessive and ask this court to apply the Powers rule ¹ to fix a reasonable amount as an option to a new trial.

The plaintiff contends that the defendants cannot ask for an application of the Powers rule on appeal because it was not requested in the trial court in motions after verdict.

The motions after verdict did set forth the defendants' contention that the damages were excessive and asked a new trial on that ground.

While it is undoubtedly better practice to ask the trial court to find the reasonable amount for damages, failure to do so is not fatal. If the motion asks for a new trial because of the excessive damages, the trial court or this court can give the plaintiff an option to take a reduced amount found to be reasonable or a new trial on damages without the formality of specifically asking the court to do so. To do otherwise might in many instances defeat the purpose of the court to avoid new trials--if the plaintiff is willing to accept the lesser amount found by the court to be reasonable.

In this instance no harm was done by not specifically asking for an application of the Powers rule. This is not a case where the trial court might have acted for the appellants if it had an opportunity to do so. Here the trial court found the damages were not excessive and there was no occasion to apply the rule.

The jury awarded the plaintiff $1,000 compensatory damages. Compensatory damages are to compensate the injured party for his actual damages and not as punishment of the defendant. If there is personal injury the award should include compensation for loss of earnings, pain and suffering, and permanent or future disability if such appears. The award can also include compensation for mental suffering such as humiliation, shame, embarrassment, and fear. Granted, mental suffering is many times difficult to evaluate in terms of monetary awards, nevertheless, it is compensable.

Considering the testimony and other proof in the record most favorable to the plaintiff, ^1a we find that plaintiff was subjected to a painful physical assault for a very few minutes at the most. She testified her arms and back hurt while she was held and that the soreness of her mouth was aggravated when the teeth were taken. There was no objective physical evidence of injury. She did not consult a physician, nor use prescriptive medicine. Her physical injury was nominal. She testified that she was nervous, humiliated and scared during the altercation at the nursing home, at the drugstore, the police station, and for about a week thereafter and still (at the time of trial) thinks about it. She was without her teeth for, at the most, an hour. Understandably she could suffer humiliation and shame during this period. Conceivably she could continue to suffer these emotions for some time thereafter, but her symptoms were all subjective and not supported by any medical testimony nor any other corroborating evidence. The lack of medical testimony or other corroborating evidence is not fatal to her claim for past suffering but it would have done much to add credence to her almost minimal testimony of her subjective emotions.

In Makowski v. Ehlenbach (1960), 11 Wis.2d 38, 41--43, 103 N.W.2d 907, 910--911, we stated:

'The problem of achieving fairness in assessing damages for personal injury is fraught with difficulty. Theoretical nicety is impossible. Under our judicial system, we rely primarily upon the good sense of jurors to determine the amount of money which will compensate an individual for whatever loss of well-being he has suffered as a result of injury. The general rule governing the trial judge or appellate court in determining whether damages are excessive on the basis of the amount found is stated in 15 Am.Jur., Damages, p. 621, (p. 622), sec. 205, quoted with approval in Bethke v. Duwe, 1950, 256 Wis. 378, 384, 41 N.W.2d 277, 280, as follows:

"In actions sounding in damages merely, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere. As shown elsewhere, a verdict may be set aside as excessive by the trial court or on appeal when, and not unless, it is so clearly excessive as to indicate that it was the result of passion, prejudice, or corruption, or it is clear that the jury disregarded the evidence or the rules of law. * * *

"Since it is for the jury, and not for the court, to fix the amount of the damages, their verdict in an action for unliquidated damages will not be set aside merely because it is large or because the reviewing court would have awarded less. Full compensation is impossible in the abstract, and different individuals will vary in their estimate of the sum which will be a just pecuniary compensation. Hence, all that the court can do is to see that the jury approximates a sane estimate, or, as it is sometimes said, see that the results attained do not shock the judicial conscience.'

'We should add to the statement just quoted that there are cases where the amount of an award may not indicate prejudice, perversity, or corruption, yet is too large to be supported by the evidence. Blong v. Ed. Schuster & Co., 1956, 274 Wis. 237, 242, 79 N.W.2d 820; Blaisdell v. Allstate Ins. Co., 1957, 1 Wis.2d 19, 24, 82 N.W.2d 886. A jury may mistakenly assume (without supporting evidence) that there have been, or will be certain effects from an injury or fix compensation for sufficiently-proved effects of injury at a figure which is beyond the range of reasonably debatable amounts. In a case where it is clear to the court that the amount awarded must necessarily reflect an allowance for the effects of injury not sufficiently proved or reflect a rate of compensation which is beyond reason, the court will declare the damages excessive. Where the question is a close one, it should be resolved in favor of the verdict.'

The trial court was of the opinion the award for compensatory damages was high but not excessive. 'In view of the limited, vague and uncorroborated testimony bearing' ² upon her mental distress, we are of the opinion the award for compensatory damages of $1,000 does 'reflect an allowance for the effects of injury not sufficiently proved' and 'reflect a rate of compensation which is beyond reason' ³ and, therefore, excessive. We are of the opinion that $500 is a reasonable award to Mrs. Jones for compensatory damages.

The appellants acknowledge that the court has reaffirmed its adherence to the doctrine of punitive damages. ⁴ They do, however, propose that the doctrine should be limited to cases of sexual assault and cases where the defendant engages in a course of dangerous conduct after he has had time to reflect upon the deleterious effects of such action. We have said the doctrine is to be retained--we are not convinced that the limitations suggested by the appellants are based on appropriate distinctions.

Punitive damages can be awarded where the defendant's transgressions are activated by a malicious motive. ⁵ However, punitive damages need not be limited where there is no proof of malice. In Kink v. Combs, supra, ⁶ we stated at page 79, 135 N.W.2d at page 797:

'The defendant claims that the question of punitive or exemplary damages should not have been submitted to the jury because defendant's acts were not activated by malice or vindictiveness. However, malice or vindictiveness are not the sine qua non of punitive damages.

"Where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action 'punitive' or 'exemplary' damages, or what is sometimes called 'smart money." Prosser, Law of Torts (2d Ed.1955), p. 9.

'For the award of punitive damages it is sufficient that there be a showing of wanton, Wilful, or reckless disregard of the plaintiff's rights. 6 C.J.S. Assault and Battery § 55b(3), p. 904.'

We are of the opinion that the jury could (they are not required to do so) ⁷ award punitive damages based upon the facts before them. The conduct of Mr. and Mrs. Fisher was illegal, outrageous and grossly unreasonable. It may be as appellants contend that they erroneously thought they had a right to take the teeth as security for their loan. Even so, it was grossly unreasonable to use the tactics they did and subject the plaintiff to this outrage.

The principal problem that confronts us is whether the damages awarded are excessive.

Punitive damages are assessed not to compensate the injured party but as a punishment to the wrongdoer and as a deterrent to others. ⁸ The evidence reveals that the defendants' own property was worth approximately $75,000, subject to a mortgage of $41,000, leaving an equity of about $34,000. Their net income for the years 1966 and 1967 was about $24,000 per year. It appears as though the nursing home operation was a joint venture between Mr. and Mrs. Fisher. In contrasting the punitive awards with the wealth of the defendants we must either assume the award was $5,000 or consider that each owned one-half of the wealth of the...