Redepenning v. Dore
| Decision Date | 31 October 1972 |
| Docket Number | No. 152,152 |
| Citation | 56 Wis.2d 129,201 N.W.2d 580 |
| Parties | William REDEPENNING, Jr., et al., Plaintiffs-Respondents, v. John Henry DORE, Jr., et al., Defendants-Appellants, American Family Mutual Insurance Co., Third-Party Defendant. |
| Court | Wisconsin Supreme Court |
Stafford, Rosenbaum, Rieser & Hansen, Richard A. Hollern, Madison, for defendants-appellants.
William E. Johnson, Madison, for plaintiffs-respondents.
The defendants-appellants cotend:
1. The verdict should be set aside and a new trial granted because (a) the verdict is contrary to the evidence; (b) the verdict is perverse as a result of passion and prejudice; and (c) it is required in the interest of justice.
2. The jury awards in several questions on damages are excessive and should be reduced with an option of a new trial to plaintiffs-respondents.
In Powers v. Allstate Ins. Co. [1960], 10 Wis.2d 78, 91, 92, 102 N.W.2d 393, 400, we said, '. . . where an excessive verdict is not due to perversity or prejudice, and is not the result of error occurring during the course of trial, the plaintiff should be granted the option of remitting the excess over and above such sum as the court shall determine is the reasonable amount of plaintiff's damages, or of having a new trial on the issue of damages . . ..' It follows that in those instances where the verdict is the result of perversity or prejudice or is the result of prejudicial error, the court does not fix the reasonable amount of the damages but orders a new trial for the defendant.
The defendants here contend that the verdict is perverse, that it is contrary to the evidence, that it is excessive. We will first consider their contention that it is 'perverse and showed the results of passion and prejudice.'
A verdict is perverse when the jury clearly refuses to follow the direction or instruction of the trial court upon a point of law, 3 or where the verdict reflects highly emotional, inflammatory or immaterial considerations, or an obvious prejudgment with no attempt to be fair.
The trial judge, who is in a better position to determine whether perversity permeated the verdict, concluded it did not. This conclusion will not be upset unless it can be shown to be an abuse of discretion.
Other than the contentions that the amounts awarded by the jury are excessive or not supported by evidence, the defendants make no claims upon which to base a conclusion of perversity. Excessiveness alone, except perhaps in a case where it is grossly so and readily apparent, is not sufficient to label a verdict perverse. 4 Likewise minor awards not supported by any evidence do not necessarily indicate perversity.
We have examined the entire record 5 and do not find elements sufficient to establish perversity; in any event, the trial court did not abuse its discretion and the verdict will not be set aside as perverse.
We will consider the claim of the insufficiency of the evidence together with the claim of excessiveness even though a complete want of evidence as to the substantial award of damages could require a new trial for defendants, whereas just excessiveness would result in an option or remittitur or a new trial for the plaintiffs. 6
It is apparent from its memorandum opinion that the trial court analyzed the evidence in light of the defendants' motions after verdict. It is further apparent the trial judge concluded that the verdict is supported by the evidence and that the amounts awarded as damages, although high, are not excessive. 7 We agree.
Notwithstanding our opinion that an affirmance of the judgment can rest upon the adequacy of the trial court's memorandum, because of our belief that the amounts awarded reach the upper limits of reasonableness and that the sufficiency of the proof to sustain some of the awards is somewhat questionable, we deem it advisable to discuss some of the evidence.
The defendants-appellants contend that the $1,000 award for loss of services of plaintiffs' daughter is excessive. The award is not excessive and the jury had reasonable grounds to make such an award. The evidence indicates that Diane provided many services to her family. She helped with the housework, cooking, baby-sat, made purchases for the family, and did other household and family chores. Her mother testified that Diane did just everything and these services had an economic value to the family. This evidence was not rebutted nor contradicted by appellants. A reasonable jury could reach such an award based on this evidence.
The appellants argue that there must be exacting testimony as to the value of the pecuniary loss. The law makes no such requirement. The reason is that it is impossible to provide an adequate mathematical formula or rule of law to be applied in all cases which the jury can utilize in its determination. So the jury is not held to any fixed and precise rule in fixing the amount of damages--but can compensate pecuniary losses or injuries from such amounts that find reasonable support in the evidence and are based upon the jurors' common knowledge and judgment.
The appellants allege that the $3,000 award for medical and hospital expenses incurred by Mr. Redepenning for the care and treatment of his wife's resulting injuries is not supported by the evidence. This contention is grounded on the proposition that the highest award that could be sustained here is $1,664.24--the jury awarded almost double the amount. The record indicates the following doctors' and hospital expenses:
Dr. Shropshire $ 40.00
Dr. Suckle 321.00
Dr. Vogt 135.00
Dr. Calden 70.00
X-rays 52.00
Madison General Hospital 646.40
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In addition, Dr. Suckle estimated a drug cost of $10 per month for Bonine, and Dr. Shropshiare testified that Triavil 2-10 cost $6.15 for 50 tablets. Both of these medications were used to treat Julia from the date of the accident through trial. The accident occurred on June 15, 1968, and the jury returned its verdict on January 21 1971. This is at least a thirty-one month period. Dr. Suckle then testified that a patient usually takes about 100 tablets of these drugs per month--that is, one of each drug three times per day. Based on appellants' own formula, 31 months of Triavil 2-10 at $12.30 for 100 tablets per month is $381.30; and 100 tablets of Bonine at an average cost of $10 per month for 31 months is $310. These two subtotals equal $691.30. Other drug bills incurred add up to another $87.84. Further, Mr. Redepenning stated that he spent $60 for 20 trips at 30 miles each to bring his wife to the doctor in Madison; and incurred $90 in laundry bills. He also testified that he spent his five-week vacation without pay to stay home and take care of his wife, children, and to perform the housework. He stated that the accrual pay for this five-week period would be approximately $875.
The reasonable value of nursing services made necessary because of the injury is a compensable item. Mr. Redepenning did render services akin to home nursing service and stayed away from his job to do so. He should be entitled to include this service in his claim; but the measure of damages is what these services would reasonably and customarily cost in his community 8 and not what earnings he lost. However, the defendants did not object to this testimony and cannot be heard to complain now.
These above figures include all costs set out in Exhibits 56 and 57. The former dealt with the drug bills and the latter with hospital and doctors' bills. From the evidence most favorable to the plaintiffs, the grand total of these costs is $3,058.54. The jury award of $3,000 should be sustained.
The appellants maintain that the $15,000 award for loss of Julia's services, society and companionship to Mr. Redepenning is excessive. No evidence was offered to controvert the testimony that Mr. Redepenning did not suffer such losses. Further, the losses involved in this element of damages cover many other intangibles such as love, affection, sex and solace. The value of these losses is incapable of precise determination.
The record shows that their marital relationship was normal. True, they argued at times and divorce was threatened, but at other times they were very compatible. There was no evidence that their marriage was anymore unstable than any other marriage. Before the accident Julia did everything around the house--taking care of the children, cleaning house, doing the washing, and having marital relations with her husband. Since the accident she does almost nothing. She has no interest in herself, her husband or the children, refuses to do housework, and has not had sexual relations with her husband since the accident--almost two and one-half years. There was testimony that it was difficult to get along with her at times before the accident, but since the accident it almost always impossible. Dr. Calden tesified that she is mentally depressed, does not care to live anymore, gets along poorly with people, is very nervous and wants to be left alone. This evidence would clearly support the proposition that Mr. Redepenning has been deprived of her services, society and companionship and will continue to be deprived of such in the future. In light of this uncontroverted evidence, the jury award does not seem to be unreasonable or excessive.
The defendants-appellants finally urge that the $75,000 award to Julia Redepenning for her personal injuries for past and future pain and suffering, future impairment of her earning capacity, and future medical expenses is excessive and that there is no evidence of compensable traumatic neurosis.
At the time Julia was admitted to the hospital on the day of the accident she was unconscious. She had a fragmented break of the humerus in her left arm near the shoulder, a badly lacerated right ear, a deep laceration to the left knee, small lacerations to her forehead, and glass in her forehead; and numerous bruises and abrasions...
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