Moldenhauer v. Faschingbauer
Decision Date | 31 January 1967 |
Citation | 148 N.W.2d 112,33 Wis.2d 617 |
Parties | Erling MOLDENHAUER, Appellant, v. David Robert FASCHINGBAUER, a minor, by Bernard J. Kostner, his gdn. ad litem, Respondent. |
Court | Wisconsin Supreme Court |
Robert R. Gavic, Spring Valley, for appellant.
Wickham, Borgelt, Skogstad & Powell, Milwaukee, Thomas N. Klug, Milwaukee, of counsel, for respondent.
A single question is presented on this appeal, namely, whether a plaintiff who exercises an option given under the Powers rule to accept a reduced amount of damages in lieu of a new trial is entitled to interest from the date of the verdict on such reduced amount. Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 102 N.W.2d 393.
Interest on the amount of a verdict from its date is includable in the judgment as an item of costs under sec. 271.04(4), Stats., which provides, 'When the judgment is for the recovery of money, interest at the legal rate from the time of verdict, decision or report until judgment is entered shall be computed by the clerk and added to the costs.' We think the option granted under the Powers rule is in the nature of a remittitur of an excess amount of the verdict and the plaintiff is entitled to interest on the verdict so reduced. The reduced verdict then is the foundation for the judgment. The defendant argues the option under the Powers rule is in the nature of a substitution for the excessive verdict which is set aside and the amount fixed by the court is in lieu thereof. Hence, the amount fixed by the court does not qualify as a verdict, decision or report under sec. 271.04(4).
Prior to our decision in Powers v. Allstate Ins. Co., supra, and from early times, the exercise of the court's power over an excessive verdict was on the theory and in terms of correcting the verdict. On the ground of public policy to avoid relitigation, the court gave to the plaintiff the option to remit the excess of the verdict over an amount the court decided the plaintiff was entitled to have and, if the plaintiff agreed to accept that amount, the verdict was ordered to stand for the reduced amount and judgment was entered thereon. This procedure called for the plaintiff to file a remittitur whereby he remitted the excess of the verdict over the amount set by the court in the option. Corcoran v. Harran (1882), 55 Wis. 120, 12 N.W. 468; Hocks v. Sprangers (1902), 113 Wis. 123, 87 N.W. 1101, 89 N.W. 113; Heimlich v. Tabor (1905), 123 Wis. 565, 102 N.W. 10, 68 L.R.A. 669.
The plaintiff relies for his right to tax interest on the reduced amount of the verdict upon Waterman v. Chicago & Alton R. Co. (1892), 82 Wis. 613, 52 N.W. 247, and Rasmussen v. Milwaukee E.R. & T. Co. (1952), 261 Wis. 579, 53 N.W.2d 442. In Waterman the plaintiff was given the option of remitting $5,000 of a $25,000 verdict or taking a new trial and on rehearing, on the question of interest, this court stated judgment 82 Wis. at p. 639, 52 N.W. 247. This section was a forerunner of sec. 271.05, Stats. 1933, which later became the present sec. 271.04(4). In Rasmussen, this court, discussing this section, said 'where the amount of damages assessed in a verdict is reduced, the plaintiff is entitled to interest on that part of the verdict for which judgment is entered unless the order granting the option clearly excludes the right to interest.' 261 Wis. at p. 583, 53 N.W.2d p. 445.
In McLimans v. City of Lancaster (1886), 65 Wis. 240, 26 N.W. 566, a judgment for the plaintiff was reversed on a prior appeal because damages were excessive. The court had directed the trial court to grant plaintiff an option providing that if he remitted in writing from the verdict all damages excepting $5,000 and filed such remission with the clerk then the plaintiff should have judgment 'on the verdict and such remission' for $5,000 and costs. Upon the failure to remit a new trial was to be ordered. The plaintiff filed his remission and took judgment including interest on the verdict. On the second appeal this court held the plaintiff was entitled to include in such judgment interest on the $5,000.
The plaintiff attempts to distinguish these cases on the ground the verdict was not set aside as it was in the instant case. In contrast to these cases stands Lehman v. Amsterdam Coffee Co. (1912), 151 Wis. 207, 138 N.W. 606. In Lehman a judgment for damages was reversed and a new trial ordered but with an option to the plaintiff to take judgment for $1,000. The plaintiff elected to take judgment and included interest from the date of the verdict. The court held the inclusion of interest was error because the plaintiff was given an option 'to take judgment for $1,000 and no more.' No prior case on the subject was cited. This case stands alone and in principle cannot be justified.
We think for the purpose of interest it does not make any difference how the option is framed under the Powers rule, i.e., whether in the preferable form of requiring a remittitur of the excess of the verdict over the amount set by the court or couched in language of accepting or taking a judgment for a reduced amount. The nature of the judicial process is the same. It is the correction of the verdict through its reduction by the consent of the plaintiff so that a judgment can be grounded upon a nonexcessive verdict. There is no doubt that where a verdict is not the basis of the judgment, interest cannot be taxed from the date of such verdict. Thus where a new trial is granted and the verdict is set aside and a second verdict is...
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