Quick v. 1960 American Legion, Dept. of Wis. Convention Corp.

• Decision Date: 03 October 1967
• Citation: 36 Wis.2d 130,152 N.W.2d 919
• Parties: Gail QUICK et al., Appellants, v. 1960 AMERICAN LEGION, DEPT. OF WIS. CONVENTION CORP. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 919

152 N.W.2d 919

36 Wis.2d 130

Gail QUICK et al., Appellants, v. 1960 AMERICAN LEGION, DEPT. OF WIS. CONVENTION CORP. et al Respondents.

Supreme Court of Wisconsin.

Oct. 3, 1967.

Hanaway & Ross, Green Bay, for appellants.

Davis, Soquet & Cherney, Green Bay, for respondents.

HEFFERNAN, Justice.

Standards employed when reviewing an order for a new trial

in the interests of justice.

When a trial judge has ordered a new trial in the interests of justice that order will be affirmed unless there is a clear showing of an abuse of discretion. Van Gheem v. Chicago & N.W.R. Co., 33 Wis.2d 231, 236, 147 N.W.2d 237 (1967). Though it is within the power of this court to reverse, such an order will be reversed only upon the showing of a clear abuse of discretion. McPhillips v. Blomgren, 30 Wis.2d 134, 140 N.W.2d 267 (1966); Combs v. Peters, 23 Wis.2d 629, 127 N.W.2d 750, 129 N.W.2d 174 (1964); Zernia v. Capitol Court Corp., 21 Wis.2d 164, 124 N.W.2d 86, 125 N.W.2d 705; Birnamwood Oil Co. v. Arrowhead Asso., Inc., 14 Wis.2d 657, 112 N.W.2d 185 (1961); Bolssen v. Heenan, 3 Wis.2d 110, 88 N.W.2d 32 (1958). This court, however, seeks not to sustain the verdict of the jury, but looks for reasons to sustain the findings and order of the trial judge. McFarlin v. Hewitt, 5 Wis.2d 488, 493, 93 N.W.2d 445 (1958); Van Gheem, supra, 33 Wis.2d p. 236, 147 N.W.2d 237. Only when it becomes apparent that the trial judge grounds his decision for a new trial upon an erroneous view of the law, does this court take the position that the judge's determination on this question ceases to be discretionary. Huebner v. Fischer, 232 Wis. 600, 603, 288 N.W. 254 (1939); Halsted v. Kosnar (1963), 18 Wis.2d 348, 354, 118 N.W.2d 864 (1963).

If one ground relied upon by the trial court in granting a new trial in the interests of justice is sufficient, the order of the trial court will be affirmed. Hillstead v. Shaw, 34 Wis.2d 643, 648, 150 N.W.2d 313 (1967); McFarlin v. Hewitt, supra. Where the answer to one material question shows that the jury answered perversely, the court should set aside the entire verdict unless it is satisfied that the answers to other questions were not affected by such perversity. Mauermann v. Dixon, 217 Wis. 29, 34, 258 N.W. 352 (1935); Grammoll v. Last, 218 Wis. 621, 632, 261 N.W. 719 (1935); Schweiner v.

Kralovetz, 216 Wis. 542, 545, 257 N.W. 449 (1934)

. Did the verdict taken as a whole reflect such

perversity that the trial judge properly

set it aside in toto and

ordered a trial on all issues?

It was the trial judge's conclusion that the damage verdict was so excessive as to be 'a shock to judicial conscience.' He stated:

'It is far beyond anything which a conscientious, properly instructed jury could allow upon the great weight and preponderance of the credible evidence * * *. The award is so clearly high and so grossly disproportionate to Mrs. Quick's personal injury and residuals as to indicate perverseness on the part of the jury.'

He concluded that, even under the rule that the evidence must be considered in light most favorable to Gail Quick, damages were excessive and contrary to the great weight and clear preponderance of the evidence.

Since the order of the court must clearly be affirmed on the basis of the other reasons given by the trial judge, a detailed exploration of the evidence in regard to damages need not be made in this opinion. Suffice it to say that the evidence viewed as a whole in regard to the injuries sustained by Gail Quick does not lead us to conclude that the trial judge so clearly abused his discretion in finding those damages were excessive that we would reverse on that ground. There was evidence and medical testimony that Gail Quick's present disability, including the back pain, was occasioned by the firecracker explosion. That evidence was not incredible. On the other hand, the defendants submitted evidence that would lead to the opposite conclusion. Neither the plaintiff nor the defendants' position was founded upon clearly incredible evidence. Since the ultimate determination of damages will have to abide a new trial, it would be pointless to make an extended analysis of what was presented in the instant case when in all probability the evidence in a new trial may well vary to some degree and our view of the damages herein would not be controlling in the retrial. We conclude that the other reasons given by the trial judge are overwhelmingly persuasive that a new trial should be granted.

The jury was asked whether the firecracker which caused the injury was dropped or thrown from the Waupaca locomotive float. That question was answered affirmatively. The trial judge, prior to the submission of the verdict to the jury, properly refused to answer that question affirmatively because the record demonstrates that there were other firecrackers exploding in the vicinity that did not clearly originate from the Waupaca float. Nevertheless, there was credible evidence to sustain the jury's answer finding that the firecracker did originate on the Waupaca float. The jury, however, having answered the first question, 'yes,' nevertheless proceeded to give a negative answer to the second question, which inquired, 'Was the Waupaca Society of 40 and 8 negligent in allowing the firecracker in question to be thrown or dropped from its said float?'

The negative answer to this question, as the trial court stated, is clearly perverse in view of the judge's instructions, which were approved by both plaintiff and defendants. The most significant portion of the instruction with respect to the second question was the court's statement that there was in force at the time of the injury a statute of the state of Wisconsin (sec. 167.10(1), Stats.). The court, quoting that statute, stated, "It is unlawful for any person to * * * use * * * discharge or explode any firecrackers * * * within the state of Wisconsin * *...