Olson v. Elliott

• Decision Date: 19 June 1944
• Citation: 15 N.W.2d 37,245 Wis. 279
• Parties: OLSON v. ELLIOTT et al.
• Court: Wisconsin Supreme Court

245 Wis. 279

15 N.W.2d 37

OLSON

v.ELLIOTT et al.

Supreme Court of Wisconsin.

June 19, 1944.

On motion for rehearing.-[By Editorial Staff].

Motion denied and original mandate amended.

For former opinion, see 245 Wis. 279, 14 N.W.2d 1.

WICKHEM, J., ROSENBERRY, C.J., and MARTIN, J., dissenting. Hale & Skemp, of La Crosse, for appellant.

Otto M. Schlabach, of La Crosse, and Wilkie, Toebaas, Hart & Jackman, of Madison, for respondents.

FOWLER, Justice.

The case is up on motion by the defendants for rehearing, with alternate motion that if rehearing is denied the court change the mandate to remand the case for the trial court to rule upon the motion of defendants for a new trial. The plaintiff asks the court to correct the judgment by adding an item of damages inadvertently omitted by the court in computing the admitted expenses incurred by the plaintiff.

The defendants reargue their contention that the finding of the jury that the defendant driver was negligent was properly set aside by the trial court. The court perceives no reason for further discussion of this point.

The defendants base their alternative motion on sec. 270.49(1), Stats., which provides in part that ‘* * * in case judgment be entered without deciding a pending motion for new trial, the supreme court may direct the trial court to determine such motion within sixty days after notice of filing the remittitur.'

The only ground of the motion for a new trial that there is occasion to discuss is that it should be granted in the interest of justice.

It is plain from the decision of the trial judge changing the answer of the questions of the jury finding the defendant driver causally negligent and his statements at the time of so deciding that he was of opinion that justice was not done by the verdict. The power of the trial judges to grant new trials in the interest of justice has been uniformly upheld by this court, unless it appeared that the ground of being against the interest of justice was thrown in to save the ruling when the real ground of granting the motion appeared from the record to be ill taken or was based on an erroneous view of the law. See Sichiling v. Nash Motors Co., 207 Wis. 16, 21, 238 N.W. 843. It is in the discretion of the trial judge to grant a new trial, when he is convinced that the verdict is against the great weight and preponderance of the evidence. Pierson v. Citizens' T. & T. Co., 135 Wis. 73, 115 N.W. 336. The trial judge also has such discretion when convinced that the testimony on which it is based is false. Schlag v. Chicago, M. & St. P. R. Co., 152 Wis. 165, 139 N.W. 756;Jolitz v. Fintch, 229 Wis. 256, 282 N.W. 87. That the instant judge was so convinced in both these respects is plain. Had he taken the view that this court has taken, that there was evidence sufficient to raise a jury question and had granted the motion for a new trial on either ground next above stated, we could not have disturbed it.

In the cases above cited the new trial was granted before judgment was entered. The question here is whether after having changed the answers of the jury and entered judgment according to the amended verdict the trial judge may or should be permitted to pass upon the motion for a new trial made by the party in whose favor the judgment was entered. The cases relied on by defendants most similar to the instant case are Klatte v. Franklin State Bank, 211 Wis. 613, 248 N.W. 158,249 N.W. 72, and Wisconsin Telephone Co. v. Russell, 242 Wis. 247, 7 N.W.2d 825, in both of which the case was remanded for the trial court to rule on the motion for a new trial. In the Klatte case there was a jury verdict with findings that one defendant, Rubin, who was a surety on a bond, had notified the adverse parties of his withdrawal as surety on the bond and that three other defendants had not given notice of their withdrawal. The trial court held that Rubin was discharged from liability and that his discharge operated to discharge the other three sureties and entered judgment dismissing the complaint as to all four. On motion for rehearing, see, 211 Wis. page 627, 249 N. W. page 72, the three defendants other than Rubin asked the court to change the mandate to remand the case to permit the trial court to pass upon their alternate motion to that court for a new trial because the finding against them as to notice was not supported by the evidence. We remanded the case for the judge to pass upon that motion. We had said in our opinion [211 Wis. 613, 248 N.W. 163] that the question as to notice ‘was clearly for the jury’ and this was urged in opposition to the motion to change the mandate. The only difference between the instant situation and that in the Klatte case is that in that case the question of the sufficiency of the evidence to support the finding was not argued while here it was fully argued and was the only question before the court. In the Telephone Co. case there was a finding by the jury favorable to the defendants. The court entered judgment for the plaintiff notwithstanding the verdict. The granting of judgment on that ground was erroneous because such a motion admits the facts as found by the jury. Both parties had filed motions after verdict. The defendant's motion was that the action be dismissed-on the finding of the jury that the defendants did not break a cable, the alleged breaking of which was the basis of the action. The trial judge was of opinion that the defendant did not break the cable. Had he changed the answer of the jury to that question and entered judgment for the plaintiff the situation would be like the instant one except that the defendant there did not ask for a new trial and the defendant here did ask it on the ground that the evidence did not support the jury's finding.

There is a general statement in Chevinskas v. Wilcox, 212 Wis. 554, at page 557, 250 N.W. 381, at page 382, that ‘if * * * the verdict is supported by the evidence it cannot be considered contrary thereto, or perverse, or the result of passion and prejudice.’ In that case the ground of the motion for a new trial as to being supported by the evidence was that the verdict was ‘contrary to the evidence’; here that ground is that ‘it is contrary to the overwhelming weight of the evidence.’ There is a difference between these two grounds; a difference in degree that may warrant granting a new trial in this case and not warranting it in the Chevinskas case. In that case there was no indication that the trial judge considered the evidence on which this court upheld the verdict false, while in this case that he so considered it is plain. We think this so distinguishes the cases as to make the rule of the Chevinskas case inapplicable under the rule of the Pierson and Schlag cases first above cited.

In another case recently decided, Nowicki v. Northwestern Nat. Casualty Co., 244 Wis. 632, 12 N.W.2d 918, the trial judge changed answers finding a plaintiff automobile driver not negligent and ordered a new trial. This court on appeal by the plaintiff reversed the trial court and directed judgment for the plaintiff upon the finding of the jury who had found the defendant driver of a colliding automobile negligent. Nowicki appealed from the order of the court changing the answers of the jury, denying his motion for judgment on the verdict and directing a new trial. The defendant had moved after verdict for the change of answers from ‘no’ to ‘yes' and for judgment on the amended verdict and in the alternative for a new trial on the grounds that the answers were contrary to the...