Thill v. Modern Erecting Co.

• Decision Date: 23 December 1971
• Docket Number: No. 42665,42665
• Citation: 292 Minn. 80,193 N.W.2d 298
• Parties: Therese M. THILL, Respondent, v. MODERN ERECTING COMPANY, Appellant, Johnson, Drake & Piper, Inc., Defendant.
• Court: Minnesota Supreme Court

Page 298

193 N.W.2d 298

292 Minn. 80

Therese M. THILL, Respondent, v. MODERN ERECTING COMPANY, Appellant Johnson, Drake & Piper, Inc., Defendant.

No. 42665.

Supreme Court of Minnesota.

Dec. 23, 1971.

Syllabus by the Court

The amount of the award to plaintiff for loss of consortium, in her authorized separate and unique action to recover damages therefor, held not excessive under the evidence.

Lindquist & Vennum and David E. Krause and Edward M. Glennon, Minneapolis, for appellant.

DeParcq, Anderson, Perl & Hunegs, Minneapolis, for respondent.

Heard and considered en banc.

OPINION

ROGOSHESKE, Justice.

Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865 (1969) authorized plaintiff, Mrs. Therese M. Thill, to proceed to trial on her separate action for loss of consortium. The subsequent trial resulted in a jury award of $100,000. ¹ In response to defendants' post-trial motions, the trial court refused to reduce the verdict or to order a new trial. Defendant Modern Erecting Company appeals from the posttrial order and the judgment, asking this court to reduce the award to an amount not to exceed $25,000 and to order a new trial if plaintiff refuses to consent to the reduction. We decline and affirm the judgment.

In June 1960, plaintiff's husband, Edward, was rendered a permanent paraplegic from the waist down when injured while employed in building construction work. He sued for damages, alleging negligence against defendants and others. In Thill v. Modern Erecting Co., 272 Minn. 217, 136 N.W.2d 677 (1965), we affirmed defendants' liability as joint tortfeasors to Edward and upheld the trial court's reduction of damages awarded to him by the jury from $642,400 to $375,000. Subsequently, Mrs. Thill instituted this separate derivative action against defendants. Upon appeal from a summary dismissal of her action, we overruled, to the extent it was inconsistent, Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154 (1935), which denied a wife's independent right of action for loss of consortium, and we established prospectively the rule that 'the wife of a husband injured as the direct result of the negligence of another shall have a right of action against that same (tortfeasor) for her loss of consortium' if her cause of action is joined for trial with the husband's. Thill v. Modern Erecting Co., 284 Minn. 508, 513, 170 N.W.2d 865, 869 (1969).

In recognition of plaintiff's contribution to effect a change in the rule, she was authorized to proceed to trial upon her separate action despite the limitations of prospective application and the requirement of joinder. ² Because Edward's prior award was understandably not itemized by special verdict, we acknowledged the difficulty which would confront the trial court in protecting defendants against a jury award to plaintiff of damages which were included in her husband's award. We were particularly aware of the hazard of double damages with respect to Edward's prior claims and admitted recovery of damages for nursing services furnished by plaintiff and his loss of earning capacity, i.e., for his future inability to support plaintiff and his family. We therefore cautioned:

'* * * (I)t is incumbent upon the trial court to afford defendants the substitute safeguard of evidentiary rulings and instructions to the jury.' 284 Minn. 514, 170 N.W.2d 870.

We specifically directed that the trial court determine and disclose to the jury the claims made by Edward in the trial of his action and to instruct the jury that the award to plaintiff must be limited to only such damages as the evidence she presents 'will sustain over and above that necessarily considered by the jury in her husband's prior action for his own loss.' 284 Minn. 515, 170 N.W.2d 870.

The essential issue raised by appellant is whether the award to plaintiff is excessive. A resolution depends upon whether the trial judge followed this court's instructions to adequately protect the defendants from compensating plaintiff for damages otherwise satisfied in her husband's original action, and whether the award to plaintiff is unsupported by the evidence and so unreasonable as to require a reduction in the verdict or a new trial.

The record demonstrates to our complete satisfaction that the trial judge in his rulings on evidence and in the jury instructions fully conformed to our cautionary instructions and employed every feasible safeguard to protect against an award of double damages. Indeed, it is clear that throughout the trial, not only the judge but counsel were fully aware of the potential of overlapping damages and repeatedly admonished the jury to avoid, to the best of their ability, duplication of damages for nursing services and to segregate from their award damages previously awarded to Edward. We thus entertain no reasonable doubt that the jury was sufficiently cognizant of the difficult task confronting them.

We have carefully reviewed the record and have considered all of appellant's arguments in support of its claim that the award is excessive, including the contention that because the communal and conjugal relationships of married partners is bilateral and incapable of separation, a double award was inevitable. We nevertheless are not persuaded to interfere, for appellant cannot demonstrate, without indulging in speculation, that a...