Witmer v. Safeco Ins. Co.
| Decision Date | 14 August 1985 |
| Citation | 126 Wis.2d 511,375 N.W.2d 220 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. DAVID D. WITMER and JUANA WITMER, Plaintiffs-Respondents, v. SAFECO INSURANCE COMPANY OF AMERICA, a foreign insurance corporation, and MILTON A. GRIMES, Defendants-Appellants. 84-1899. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Kenosha County
Affirmed
Appeal from a judgment of the circuir court for Kenosha county: David M. Bastian, Judge.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Milton A. Grimes and Safeco Insurance Company (Grimes) appeal from a judgment entered in favor of David D. Witmer and Juana Witmer. Grimes challenges the authority of a judge other than the trial judge to rule on post-verdict motions. Grimes further argues that even if it was proper for the successor judge to rule on the post-verdict motions, the motions were erroneously denied. We conclude that the successor judge was authorized to rule on the post-verdict motions. Furthermore, we conclude the motions were correctly decided. Therefore, we affirm.
David Witmer commenced this personal injury action after he sustained an injury to his left hand while assisting Grimes in the repair of Grimes' garage door. The case was tried to a jury on March 22 and 23, 1983. The jury found Grimes fifty-five percent negligent and Witmer forty-five percent negligent. Witmer was awarded damages of $34,310.66.
The jury trial was conducted by the Honorable John E. Malloy. Motions after verdict were pending before Judge Malloy when he died. The Honorable David M. Bastian served as the successor judge and denied Grimes' post-verdict motions. Judgment was entered in favor of Witmer.
We first address Grimes' claim that the successor judge was not authorized to rule on the post-verdict motions brought in this case. Rather, contends Grimes, a new trial was required. We disagree.
While we find no Wisconsin case in which a successor judge has ruled on the type of post-verdict motions brought in this case, the general rule is that a successor judge may complete any acts not completed by the predecessor judge where those acts do not require the successor judge to compare and weigh the testimony. Cram v. Bach, 1 Wis.2d 378, 383, 83 N.W.2d 877, 880 (1957). A successor judge may not make findings of fact in a case tried and heard by the predecessor judge. In re Estate of Popp, 82 Wis.2d 755, 771, 264 N.W.2d 565, 572 (1978). Furthermore, a successor judge may modify or reverse the decision, judgments and rulings of his predecessor if a weighing of the testimony is not required. Starke v. Village of Pewaukee, 85 Wis.2d 272, 283, 270 N.W.2d 219, 224 (1978).
Our major inquiry, therefore, is whether Grimes' post-verdict motions required any fact-finding or weighing of testimony. If not, the successor judge was authorized to rule on the motions.
The first motion Grimes brought was for reconsideration of his earlier motion for directed verdict 'on the grounds that the evidence, as a matter of law, fails to establish liability.' The test for directed verdict is whether there is any credible evidence which, under a reasonable view, supports a verdict contrary to the verdict sought. Village of Menomonee Falls v. Michelson, 104 Wis.2d 137, 154, 311 N.W.2d 658, 666 (Ct. App. 1981). It is not the trial court's function to weigh the evidence when deciding a motion for directed verdict, Davis v. Skille, 12 Wis.2d 482, 485, 107 N.W.2d 458, 460 (1961), for the weight and credibility of the evidence are matters for the jury, Holloway v. K-Mart Corp., 113 Wis.2d 143, 150, 334 N.W.2d 570, 574 (Ct. App. 1983). The determination of the motion for directed verdict, therefore, did not require fact-finding or weighing of evidence and was properly decided by the successor judge.
Second, Grimes requested the court to change certain verdict answers because the evidence was insufficient to sustain the answers. The standard for deciding such a motion is essentially the same as that on a motion for directed verdict:
No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
Sec. 805.14(1), Stats. Again, the trial court is not required to find facts or weigh evidence but must determine whether there is credible evidence to suppor t the jury's verdict answers.
Next, Grimes brought a motion for a new trial on the grounds that the damages awarded were excessive due to perversity. A perverse verdict is one which is clearly contrary to the evidence. Nelson v. Fisher Well Drilling Co., 64 Wis.2d 201, 210, 218 N.W.2d 489, 493 (1974). Excessiveness of damages is generally not sufficient to label a verdict perverse but will be sufficient where the excessiveness is grossly and readily apparent. Redepenning v. Dore, 56 Wis.2d 129, 134, 201 N.W.2d 580, 583 (1972). These standards do not require fact-finding or weighing of testimony by the court.
In addition, Grimes claimed that the damages awarded were excessive and requested the court to determine the amount of damages which, as a matter of law, under the credible evidence, would represent a reasonable amount. In determining such a claim, the court 'must review all of the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff.' Boodry v. Byrne, 22 Wis.2d 585, 589, 126 N.W.2d 503, 505 (1964). This standard of reviewing damages on the claim of excessiveness requires no fact-finding or weighing of evidence.
Finally, Grimes moved for a new trial on the grounds that the verdict was contrary to the weight of the evidence and that therefore the interest of justice required a new trial. In determining whether to reverse due to a miscarriage of justice, the rule is that the jury's verdict will be sustained if there is any credible evidence which, under a reasonable view, supports the verdict. Thompson v. Howe, 77 Wis.2d 441, 453, 253 N.W.2d 59, 64 (1977). Here, again, the successor judge does not have to engage in any fact-finding or weighing of the evidence.
In this case, the jury was the trier of fact. Determination of the post-verdict motions brought by Grimes did not require any fact-finding or weighing of the evidence. The successor judge could therefore rule on the motions. 1
Having determined that the successor judge had the authority to rule on the post-verdict motions, we now consider whether the successor judge erred by denying Grimes' post-verdict motions. We conclude that the motions were properly denied.
A verdict may be directed only if the evidence gives rise to no dispute as to the material issues or when the evidence is so clear and convincing that an unbiased and impartial mind could reasonably come to only one conclusion. Holloway, 113 Wis.2d at 150, 334 N.W.2d at 574. In other words, the test is whether there is any credible evidence which under a reasonable view would support a verdict contrary to that which is sought. Village of Menomonee Falls, 104 Wis.2d at 154, 311 N.W.2d at 666.
Witmer alleged that Grimes was negligent in directing Witmer as to the repair of Grimes' garage door and that the negligence caused Witmer's injuries. A landowner owes a duty of ordinary care to any person on the premises with the landowner's permission, so as to avoid exposing the person to an unreasonable risk of harm. See Antoniewicz v. Reszczynski, 70 Wis.2d 836, 857, 236 N.W.2d 1, 11 (1975). See also Wis J I--Civil 8020. A person fails to exercise ordinary care when the person acts or omits a precaution under circumstances where a prudent person ought to reasonably foresee that the act or omission will subject a person to an unreasonable risk of injury. See Wis J I--Civil 1005. A landowner is not liable to invitees for physical harm caused by any activity or condition on the land whose danger is known and obvious. See Maci v. State Farm Fire and Casualty Co., 105 Wis.2d 710, 716, 314 N.W.2d 914, 918 (Ct. App. 1981). Grimes claims that the evidence, as a matter of law, failed to establish liability against him and that therefore the motion for directed verdict should have been granted.
Our review of the record reveals credible evidence which under a reasonable view would support a verdict in favor of Witmer. Both Grimes and Witmer testified that Grimes called Witmer on September 2, 1980 and requested Witmer's assistance in reattaching a cable on Grimes' garage door. After attaching the cable, Grimes and Witmer noticed that the garage door did not close flush with the ground. Witmer testified that he believed Grimes had some expertise with the mechanical functioning of the garage door. Witmer testified that he had no prior experience with the springs and the functioning of a garage door. Witmer testified that Grimes determined that the cause of the problem was uneven...
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