Steinfeldt v. Pierce

• Citation: 2 Wis.2d 138,85 N.W.2d 754,67 A.L.R.2d 186
• Parties: , 67 A.L.R.2d 186 Herman STEINFELDT, Respondent, v. Marion PIERCE et al., Defendants, Herman Mutual Ins. Co., a Wisconsin corporation, Appellant, State Farm Mutual Auto Ins. Co., Interpleaded Defendant.
• Decision Date: 05 November 1957
• Court: Wisconsin Supreme Court

Page 754

85 N.W.2d 754

2 Wis.2d 138, 67 A.L.R.2d 186

Herman STEINFELDT, Respondent, v. Marion PIERCE et al., Defendants, Herman Mutual Ins. Co., a Wisconsin corporation, Appellant, State Farm Mutual Auto Ins. Co., Interpleaded Defendant.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Rehearing Denied Jan. 7, 1958.

Action by plaintiff Herman Steinfeldt against Marion Pierce, Howard Steldt, William Ebert and Herman Mutual Insurance Company, to recover damages for personal injuries and property damage sustained in a collision involving the automobiles of the plaintiff, William Ebert and Marion Pierce, the Pierce car being driven at the time by Steldt. The jury returned its special verdict finding both Ebert and Steldt negligent, the plaintiff not negligent, and assessing plaintiff's damages at $5,000 for pain and suffering and temporary disability and at $15,000 for permanent injuries. On motions after verdict the trial court changed these amounts to $3,000 and $7,000, respectively, as the highest amounts a jury properly instructed would reasonably award, and gave defendants the option to permit judgment on the verdict as amended or request a new trial on the question of damages only. A new trial on damages was had, the jury awarding the plaintiff $2,500 for pain and suffering and temporary disability and $6,000 for permanent injury, and judgment was entered for the plaintiff on the amounts so awarded. From that judgment Herman Mutual Insurance Company, insurer of the Ebert car, appeals.

Thiel, Allan & Storck, Mayville, for William Ebert and Herman Mut. Ins. Co.

Callahan & Arnold, Columbus, for respondent.

MARTIN, Chief Justice.

When the trial court reduced the damages awarded by the jury in the first trial, it gave to the defendants the option of permitting the entry of judgment on the verdict as so amended 'or, by default of exercise of such option within 20 days from the filing of this decision, to thereby request a new trial. * * * A new trial will concern damages only.'

The damages not disturbed by the court's decision were $1,000 for damage to plaintiff's automobile, $50 for bandages, drugs and rental of crutches, and $227.50 for doctor and hospital bills. An interlocutory judgment for the plaintiff was entered on these amounts with costs on September 28, 1956. Thereafter the new trial was had on damages, in which the jury assessed $2,500 for plaintiff's pain and suffering and temporary disability and $6,000 for permanent injury. Judgment was entered thereon on February 6, 1957.

Appellant asks this court to review the evidence and the findings on liability made by the jury in the first trial. This we cannot do. If appellant wanted to preserve its right to appeal on the issues of negligence, it should not have exercised its option to have a new trial on the issue of damages only. In accepting the new trial on damages, it accepted the findings on liability, and waived its right to appeal on those issues.

Any other view would render the new trial on damages a nullity. Suppose we accepted this appeal and held that plaintiff was at least as negligent as the appellant's insured. What purpose would the new trial, already held, on damages have served? It would be just an idle gesture, a waste of time and money. The purpose of an option is no terminate litigation. See Corcoran v. Harran, 1882, 55 Wis. 120, 12 N.W. 468; Baker v. The City of Madison, 1885, 62 Wis. 137, 22 N.W. 141; Baxter v. Chicago & Northwestern R. Co., 1899, 104 Wis. 307, 80 N.W. 644; Heimlich v. Tabor, 1905, 123 Wis. 565, 102 N.W. 10, 68 L.R.A. 669; Campbell v. Sutliff, 1927, 193 Wis. 370, 214 N.W. 374, 53 A.L.R. 771. The litigation as to negligence has been terminated by appellant's acceptance of a new trial on damages only.

Appellant cannot be permitted to take a new trial on damages only,--accepting the findings of the jury on negligence,--and now, being satisfied with the damages fixed on the new trial, appeal on the issues of liability. The only issue on which the appellant is now in a position to appeal is the issue of the damages awarded on the new trial, and no contention is made that they are excessive.

Appeal dismissed.

CURRIE, Justice (concurring).

The motions after verdict filed by the appellant in the instant case followed the usual pattern employed by defendants in automobile accident cases in which the jury has returned a verdict in favor of the plaintiff. The first relief requested was a determination as a matter of law of the negligence issues so as to entitle the movant to a dismissal of the complaint as to them. Secondly, if this was denied, then such defendants moved for a new trial on the ground of enumerated alleged errors in the conduct of the trial. Thirdly, if the other motions be denied then a new trial was requested because of excessive damages awarded to the plaintiff.

It would seem to be beyond question that, where the trial court, as in the instant case, only grants an option in the alternative for a new trial on the issue of damages or of having judgment entered for a reduced amount of damages, and denies all such other motions, the moving defendants are not thereby deprived of their right to appeal to this court on the other issues raised in their motions after verdict. In other words, where the...