Millay v. Milwaukee Auto. Mut. Ins. Co.

• Decision Date: 05 March 1963
• Citation: 120 N.W.2d 103,19 Wis.2d 330
• Parties: Raymond L. MILLAY, Appellant, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE CO. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 103

120 N.W.2d 103

19 Wis.2d 330

Raymond L. MILLAY, Appellant, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE CO. et al., Respondents.

Supreme Court of Wisconsin.

March 5, 1963.

Bonk, Lutz & Hertel, Chilton, for appellant.

McLeod, Donohue, Colwin & Schuessler, Fond du Lac, for respondents.

FAIRCHILD, Justice.

1. Testimony as to speed. The injuries claimed by plaintiff included a strain to the cervical spine as a result of being thrown about inside his car. Plaintiff considered that in establishing the nature and extent of his injury, he was entitled to prove the force of the impact. In order to do so, he sought to show, among other things, the speed at which Russell was traveling while still on the highway. He also showed that Russell's car left a skid mark 120 feet long on the gravel shoulder and grass lawn before reaching Millay's car. Defendants contended that Russell's speed before leaving the highway was immaterial because the speed at impact was less. The court received the testimony. We are of the opinion that the speed as well as the other circumstances could properly be considered in determining the force of the impact and whether it caused the injuries of which he complained.

The circuit court did not reverse itself on the relevancy of evidence of speed to the issue of damages, but concluded that Millay's estimate of Russell's speed had no probative value of because the relative positions of the cars were similar to automobiles 'traveling in opposite directions on a straight-away.'

The court relied on Fessler v. Northwestern Nat. Casualty Co. ¹ There a witness who was driving west observed the defendant who was driving east. The witness first saw defendant when they were 200 feet apart. This court said:

'* * * The trial court properly ruled that Seidenschnur could not be permitted to testify as to Braun's speed since he was traveling in the opposite direction and his estimate would have no probative value. * * *'

It was also noted that Seidenschnur admitted he was in no position to judge speed and could not estimate it.

In a more recent case ² a pedestrian who was crossing a street after dark was struck by defendant's car. Plaintiff testified he first saw the car when it was 30 to 35 feet from him, and it was traveling between 65 and 70 miles per hour. This court held the testimony "was receivable and for the jury to give it such weight as they saw fit." Fessler was distinguished because of the admission of the witness in Fessler that he was in no position to judge speed.

In Maccaux v. Princl ³ we said that one driver's estimate of another driver's speed 'has little probative value, since the vehicles were traveling in opposite directions' citing Fessler.

The record before us does not show with certainty that the cars were facing in opposite directions. Assuming, however, that they were, it could not be said as a matter of law that Millay's estimate of Russell's speed had no probative value even under the rule as stated in Fessler. Millay was stationary when he made his observation of Russell's car, and apparently relied on it in determining whether he could safely enter the highway. Millay testified, before being asked to estimate Russell's speed, that he stopped to let one car pass and then saw 'another car [Russell's] approaching and I thought he was coming awful fast, so I stopped and waited for him to go by * * *.' According to Russell, the drivers could see each other when the cars were possibly 300-400 feet apart.

In the decision on file the circuit judge indicated that he had viewed the scene after the trial and relied on such view in determining that Russell was approaching from the direction opposite to that in which Millay was facing. The relative positions of the cars were not made clear in the record. Although it is conceivable that information coming to a judge after a trial and outside the record might properly affect the exercise of his discretionary power to order a new trial in the interest of justice, this should not be the case unless (1) such information goes to the vitals of an important issue and (2) a record is made and the parties given an opportunity to refute or explain it before the new trial is ordered.

2. Improper argument. In the decision the circuit judge stated that the references to insurance companies by 'counsel on both sides were of such a nature that they tended to inflame the jury.' Although the fairness or unfairness of defendant insurance company or of insurance companies in general was a wholly extraneous matter and the remarks made by either counsel on that subject are not to be approved or defended, we deem them an insufficient foundation for a new trial in the absence of an expression by the court that in its opinion the verdict was higher than it would have been in the absence of these remarks. ⁴

3. The evidence appears to sustain the award. The order for a new trial was not grounded on a finding that the verdict was excessive. In the decision the circuit court said the verdict was 'high.' The court's discussion of Powers v. Allstate Ins. Co. ⁵ and its conclusion that it could not employ the Powers' rule where error occurred on the trial may have implied that the court considered it excessive. There was, however, no analysis of why the evidence could not support the $10,000 verdict.

The collision occurred September 10, 1960. Millay's car was demolished and pushed back ten feet. He was thrown back and forth inside it. He was sore all over and extremely nervous. He became more nervous and consulted his family doctor, who gave him tablets. Later one hand became numb and his back pained him. X-rays were taken, an orthopedic specialist was called in, and he was placed in traction in a hospital for five days. He wore a cervical collar for about two months and a surgical girdle for five or six months. He continued to have pain, particularly when lifting, at the time of trial in June, 1962.

The orthopedic specialist testified that Millay incurred a strain of the cervical spine; that he had permanent disability because of chronic recurrent pain in the upper back; and that this gives him a ten percent disability of the body as a whole. Millay testified that at the time of the collision he had been working as a set-out operator and was earning $3.07 per hour; that he could not do the work as fast after his injury and his rate steadily went down; that he transferred to a job in a different department because the work would be easier and not cause as much pain; that he earned $2.25 per hour in this job at the time of trial. A reduction of 75 cents per hour could amount to some $1,500 loss per year. Millay was 26 years old at the time of trial.

We are unable to say that the evidence in the record does not sustain the $10,000 award for pain, suffering and discomfort and for impairment of future earning capacity. A determination by the trial judge that damages are excessive is accorded great weight ⁶ because of the trial judge's opportunity to observe the injured person as well as to see and hear all the witnesses. Here, however, the decision does not show the reason why the circuit judge considered the verdict high, nor does the order for a new trial refer to excessive damages.

The general rule is that an order for a new trial in the interest of justice will be reversed only where the trial court abused its discretion. ⁷ The rule does not apply, however, where the court proceeded upon an erroneous view of the law. ⁸ In the case before us, the court erred in its first reason stated in the order, and the second reason seems insubstantial. The damage award appears to us to be sustained by the evidence and the circuit court made no positive determination to the contrary. We conclude that it was an abuse of discretion to order a new trial.

4. Motion for review. Defendants claim that the...