Larson v. Hanson

• Decision Date: 18 April 1932
• Citation: 242 N.W. 184,207 Wis. 485
• Parties: LARSON v. HANSON.
• Court: Wisconsin Supreme Court

207 Wis. 485

242 N.W. 184

LARSON

v.HANSON.

Supreme Court of Wisconsin.

April 5, 1932.

As Amended April 18, 1932.

Appeals from an order of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.

Action by Albert Larson against W. W. Hanson. From an order setting aside a verdict for plaintiff and granting defendant's motion for a new trial, both parties appeal.--[By Editorial Staff.]

Defendant's appeal dismissed, and order affirmed and cause remanded on plaintiff's appeal.

The order appealed from was entered on June 4, 1931, and set aside a verdict of the jury and ordered a new trial. The action was commenced on March 22, 1930, to recover damages for injuries sustained by the plaintiff through the alleged malpractice of the defendant.

The defendant is a dentist, and while taking an X-ray picture of plaintiff's teeth the electricity arched from the X-ray tube to the plaintiff's thigh, causing a transverse fracture of the femur. The case was tried before the court and a jury, and a special verdict rendered. The jury found that the radiator end of the tube constituting the X-ray device was placed within three inches of the plaintiff's leg. Damages were assessed at $14,500. Plaintiff moved for judgment on the verdict. Defendant moved to change the answer to the first question from “Yes” to “No,” and for judgment on the verdict as so changed; for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The trial court, after hearing the motions, rendered the following decision:

“In the interests of justice and because of excessive damages, and because the answer of the jury to the first question of the special verdict is contrary to the weight of the evidence, and because of improper argument to the jury by plaintiff's counsel, the verdict of the jury is set aside, and defendant's motion for a new trial is granted; the cause to stand on the present term calendar for trial.

All other motions after verdict will be denied. An order may be drawn in accordance herewith.”

Thereafter, on June 4, 1931, an order for a new trial was made and entered. Both plaintiff and defendant appealed from this order.

Such facts as are necessary to an understanding of the questions involved will be stated in the opinion.Slensby & Zaidins, of Milwaukee (W. B. Rubin and W. C. Zabel, both of Milwaukee, of counsel), for plaintiff.

Lines, Spooner & Quarles, of Milwaukee (Chas. B. Quarles and James T. Guy, both of Milwaukee, of counsel), for defendant.

WICKHEM, J.

The defendant's appeal is from “that part of that certain order made and entered in this action * * * which orders a new trial and denies defendant's first motion that the answer to the first question of the special verdict be changed from ‘Yes' to ‘No,’ and for judgment on the verdict as so changed, and denying defendant's second motion for judgment notwithstanding the verdict.”

[1] The portions of the order which deny defendant's motion to change the answers and for judgment on the verdict as changed, and which further deny defendant's motion for judgment notwithstanding verdict, are not appealable. Treat v. Hiles, 75 Wis. 265, 44 N. W. 1088, 1090;Mills v. Conley, 110 Wis. 525, 86 N. W. 203;Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054, 3 Ann. Cas. 398;Butteris v. Mifflin & Linden Min. Co., 133 Wis. 343, 113 N. W. 642;Ripon Hardware Co. v. Haas, 141 Wis. 65, 123 N. W. 659;Puhr v. Chicago & N. W. R. Co., 168 Wis. 101, 169 N. W. 305.

[2] Nor can defendant's appeal from the order granting a new trial be sustained. Upon the verdict the defendant moved in the alternative, first, to change the answers to the special verdict and for judgment upon the verdict as so changed; second, for judgment notwithstanding the verdict; and, third, if these motions be denied, for a new trial. The order for a new trial was made in accordance with defendant's motion.

In commenting upon a similar situation, this court, in Treat v. Hiles, supra, said: “This is precisely the relief the plaintiffs asked. Considering only the form of the order, the appeal cannot be sustained; for, certainly, the plaintiffs cannot attack by appeal an order made at their request. It is immaterial that such request was in the alternative. We are inclined to think, however, that the appeal should be construed to be from the portion of the order which denies the plaintiffs' motion for judgment.”

The court thereupon proceeded to apply the rule heretofore stated, that an order denying a motion for judgment upon a verdict is not appealable. To the same effect see Ripon Hardware Co. v. Haas, cited supra. It follows...