Moritz v. Allied Am. Mut. Fire Ins. Co.

• Decision Date: 02 March 1965
• Citation: 27 Wis.2d 13,133 N.W.2d 235
• Parties: Rose MORITZ, Appellant, v. ALLIED AMERICAN MUTUAL FIRE INS. Co. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 235

133 N.W.2d 235

27 Wis.2d 13

Rose MORITZ, Appellant, v. ALLIED AMERICAN MUTUAL FIRE INS. Co. et al., Respondents.

Supreme Court of Wisconsin.

March 2, 1965.

Dudley O. Emmert and Bert E. Fredrickson, Manitowoc, for appellant.

Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for respondents.

WILKIE, Justice.

There are four issues presented on this appeal:

1. Did the trial court err in failing to find that appellant was negligent in operating her vehicle as a matter of law?

2. Did the trial court err in submitting an ultimate fact verdict rather than a detailed verdict?

3. Did the trial court err in holding excessive the jury's $6,500 damage award for personal injuries, and in reducing that award to $3,500 under the Powers rule?

4. Did the trial court err in striking the damage award of $1,500 for nursing and domestic services?

Mrs. Moritz's Negligence

The case was submitted to the jury on an ultimate fact rather than a detailed form of special verdict as respondents desired. The trial court found, as a matter of law, that Erickson had operated his vehicle in a negligent manner prior to the accident. The trial court refused to find Mrs. Moritz negligent as a matter of law. Respondents contend that the court erred in failing to find appellant negligent as a matter of law in regard to lookout and turning. In Zeitlow v. Western Casualty & Surety Co. ¹ this court rejected a claim that the trial court erred in not finding the plaintiff negligent as a matter of law, by saying:

'We do not agree with appellants that error was thus committed but, if there was, the error would be harmless, for the jury answered the question as appellants wished the court to answer it. And if the court had answered as appellants requested, the jury would still have to make the comparison of causal negligence between the parties.'

In the present case, it could not be said, after viewing the evidence as a whole, that Mrs. Moritz was negligent in any respect as a matter of law. However, it is not necessary to discuss the facts in detail because even if she was negligent, respondents were not harmed by the trial court's failure to so find since the jury ultimately found her 20 percent causally negligent.

Use of Ultimate Fact Verdict

Respondents maintain that they were prejudiced by the finding of negligence on Erickson's part since the jury was unduly influenced by this determination when apportioning negligence between the parties. It is true, as the court recognized in Niedbalski v. Cuchna that:

'* * * because of respect for the trial judge's experience and knowledge of the law, and confidence in his impartiality, a jury may give more weight to a finding made by the judge than to a similar finding which it makes for itself. It is possible for the same reason that when it reaches the comparison question, it may give disproportionally greater importance to negligence found by the judge than to negligence found by the jury. We suppose there might be cases where on review it so clearly appears from the circumstances that this must have happened, that a new trial should be had in the interest of justice.' ²

But the court continued:

'We decline, however, to adopt a rule based on a premise that a jury attributes disproportionate importance to negligence found by the judge in all, or a substantial number of the cases in which findings are made as a matter of law.' ³

That Erickson was found to be 80 percent negligent does not of itself establish that the jury was swayed. It is not at all surprising that the one who runs into the rear of another automobile is found to be much more at fault than the other driver. To conclude that a jury has placed improper weight on a finding by the trial court, it must appear from all the facts, and the record taken as a whole, that such influence could be the only explanation for the negligence apportionment. There is nothing in the present case to indicate that the finding had any effect on the jury whatsoever.

It is true that the jury was not instructed with respect to the comparison question 'cautioning the jury not to give greater or lesser importance or weight to the finding of the court that a party was negligent than to a similar finding made by the jury.' ⁴ But respondents did not request such an instruction and thus cannot complain about the failure to give it.

Respondents assert that when one party is found negligent as a matter of law while the other is not, the negligent party is prejudiced unless the case is submitted to the jury on the detailed form of special verdict. Respondents contend that otherwise the jury could be led to believe that the party is necessarily negligent in all respects--i. e., lookout, speed, management and control, etc.--while in fact there is no negligence in regard to each, and that this thus influences their negligence comparison. No authority is cited to support this proposition. If this contention is correct, the use of the omnibus form of verdict will be greatly restricted.

Although the trial court found Erickson negligent as a matter of law he clearly limited that finding to Erickson's speed and further instructed the jury on other aspects of Erickson's possible negligence, namely, lookout and management and control. Under these circumstances, respondents were not prejudiced by the ultimate fact form of special verdict.

Recovery for Personal Injuries

The jury awarded Mrs. Moritz $6,500 for her personal injuries. The trial judge, after ruling out the possibility of any error occurring on the trial and any passion or prejudice on the part of the jury, decided that the award was 'excessive.' He gave no reasons or explanation for this conclusion. Pursuant to Powers v. Allstate Ins. Co. ⁵ he found that $3,500 was a 'fair and reasonable' compensation for her injuries.

This is another instance similar to those in which we have been asked very recently ⁶ to review (1) a trial court's determination that a jury award for personal injuries is excessive, but not caused by passion, or prejudice, and is not the result of error occurring during the trial, and (2) the sum fixed as reasonable by the trial court under Powers allowing the plaintiff an option of a new trial which he can avoid by remitting the excess above the amount which the court considers reasonable and taking judgment based on that reduced amount. ⁷

The crucial question to be first resolved is whether the trial court here erred in finding that the $6,500 award for plaintiff's personal injuries was excessive. Several criteria have been established to guide a trial court's review of a jury verdict.

1. 'The problem of achieving fairness in assessing damages for personal injury is fraught with difficulty. The-oretical 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.' ⁸

2. '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.' ⁹

3. '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.' ¹⁰

4. 'In considering whether the jury's appraisal of damages for pain, suffering and disability is excessive, we must of course view the evidence in the light most favorable to plaintiff.' ¹¹

'The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff.' ¹²

5. 'In analyzing the testimony as to the existence of any permanency of the injury or the likelihood that the injured person will endure future pain and suffering before recovery may be allowed therefor, there should be competent objective medical findings and the unsupported subjective statements of the injured party are not sufficient.' ¹³ 6. '* * * a comparison with other verdicts at best can only be an imperfect analogy affording some guidelines to the solution but not necessarily determining the result.' ¹⁴

In addition to the above rules for reviewing personal injury verdicts there is a further rule that is applied where the supreme court is asked to review a determination made by a trial court that a verdict is excessive. That rule is:

'Where the trial judge has reviewed all of the evidence and has found a jury verdict awarding damages to be excessive and has fixed a reduced amount therefor, and has determined that there should be a new trial on damages unless the plaintiff takes his option for a judgment on the reduced amount, this court will reverse his direction 'only if we find an abuse of discretion on the part of the trial court.'' ¹⁵

This rule was amplified in Boodry v. Byrne, where it was stated:

'On appeal from a determination by the trial court that the found damages were excessive, this court will not find an abuse of discretion if there exists a reasonable basis for the trial court's determination after resolving any direct conflicts in the testimony in favor of plaintiff.' ¹⁶

In applying these rules to the instant case we are handicapped considerably by the...