Opinion
October 4, 1950 —
November 8, 1950.
APPEAL from a judgment of the circuit court for Milwaukee county: WM. F. SHAUGHNESSY, Circuit Judge. Affirmed.
D. J. Regan of Milwaukee, for the appellant.
Sydney M. Eisenberg of Milwaukee, for the respondents.
Sophie Matosian and Hatcher Matosian, her husband, plaintiffs, brought suit against the defendant, Milwaukee Automobile Insurance Company, Limited, Mutual, as the insurer of one Maurice Palmetor. On June 14, 1946, Sophie Matosian was struck by an automobile owned and driven by Palmetor while she was walking across a street in Milwaukee. She asked $1,500 for her personal injuries. Hatcher Matosian, her husband, joined in the action and asked to recover for medical expenses incurred in the treatment of his wife's injuries and $500 for loss of her companionship. In a special verdict the jury, on October 26, 1949, found Palmetor causally negligent with respect to lookout and failure to yield the right of way. No negligence was found as to Mrs. Matosian. The jury assessed the damages to Sophie Matosian at $1,600 and the damages to Hatcher Matosian at $15 for medical expenses and $500 for the loss of society and services of his wife. Motions after verdict were made and argued, including one on behalf of Sophie Matosian for leave to amend the complaint to ask for $1,600 in damages. By a decision dated November 9, 1949, and a supplemental decision dated November 10, 1949, the trial court reduced the amount of damages assessed in favor of Hatcher Matosian to $50 plus medical expenses, and the damages assessed in favor of Sophie Matosian from $1,600 to $1,200. The court gave the plaintiffs an option to enter judgment for the reduced amounts by notifying the defendant of their acceptance thereof within ten days after entry of "the order herein." The court directed that in case the option was not exercised by the plaintiffs there be a new trial upon the question of damages only.
On December 2, 1949, the attorney for the plaintiffs presented formal orders incorporating the determinations of the trial court in the decision and supplemental decision. These orders were signed by the trial court on the same date and each plaintiff on that date served on the attorney for the defendant written notice of acceptance of the option to take judgment for the amount of damages awarded by the court instead of those found by the jury.
On January 4, 1950, the attorney for the defendant was served with a proposed bill of costs and notice of taxation thereof. On January 6, 1950, the attorney for the defendant procured an order to show cause, "(1) why the orders for option of new trial with respect to each plaintiff signed by the court on December 2, 1949, should not be vacated and set aside; (2) why the plaintiffs' proposed bill of costs should not be stricken from the record as irrelevant; (3) why this action should not be set down for new trial on the question of damages only." Further proceedings were stayed until the further order of the court. Following a hearing and briefs upon the order to show cause, the court signed an order for judgment in favor of the plaintiff Sophie Matosian against the defendant in the sum of $1,200 plus costs and disbursements, and in favor of the plaintiff Hatcher Matosian against the defendant in the sum of $50. Judgment was entered for damages and costs on March 20, 1950, pursuant to the order therefor. The defendant appealed from such judgment.
Further facts will be stated in the opinion.
The defendant first contends that it is entitled to an unconditional new trial on the ground that the damages found by the jury were so excessive as to indicate that passion and prejudice entered into the jury's decision on questions of liability.
Following the accident Sophie Matosian was taken to the Milwaukee County Emergency Hospital. The records of that hospital indicate that she was admitted on June 14, 1946, at 11:28 p.m., and was discharged at 11:40 p.m., after receiving first aid. Her injuries were diagnosed as "contusion left knee and left shoulder." Later she was treated by a physician whose bill amounted to $15. Defendant argues that these items show her injuries were not serious and therefore that the damages were excessive.
The physician testified that he examined Sophie Matosian on June 15, 1946, and found that she had abrasions and contusions upon her shoulders, arms, and legs, particularly her left leg, and that she complained of pain in her shoulders, arms, legs, and back. He treated her five or six times for her injuries. His findings, as indicated by his records, read. as follows: "(1) Nervous shock; (2) multiple contusions and abrasions, both legs; (3) contusions of both arms and shoulders; (4) sprain of left knee." The record further discloses that she was in bed for a period of two weeks following the accident; that she was unable to do all of her housework up to September 1, 1946, and that at the time of the trial she still complained of headaches, dizzy spells, and pains in her back. There is nothing in the record in this case to indicate passion or prejudice on the part of the jury. It does not appear that the damages found by the jury were excessive, especially as to Mrs. Matosian. However, fixing a maximum was within the discretion of the trial court.
The defendant next contends that the decision and supplemental decision constituted an order under the provisions of sec. 270.53(2), Stats., which reads as follows:
"Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order."
It contends, therefore, that plaintiffs did not accept the reduced amount of damages within ten days from the date of the decision and supplemental decision and therefore the defendant is entitled to a new trial on the question of damages. It is clear from the wording of the decision and supplemental decision that the trial court contemplated the signing of formal orders pursuant to the decisions. The court signed the orders on December 2, 1949, and the matter was again before him on the hearing on the order to show cause. The acceptances were served within ten days from the signing of the formal orders on December 2, 1949. A court of general jurisdiction has complete control of its orders during the term in which they are made or entered, except in cases especially covered by statute. Feiges v. Racine Dry Goods Co. 231 Wis. 284, 285 N.W. 805. The trial court's own interpretation of its decision and supplemental decision cannot be disturbed.
The defendant finally contends that the plaintiff Sophie Matosian is not entitled to her costs and disbursements as taxed because the same were not taxed within sixty days from the date of the verdict. Sec. 270.66, Stats., reads as follows:
"Within sixty days after filing of a verdict on which the clerk is authorized to enter judgment without an order, or within sixty days after an order to enter judgment is filed, the successful party may tax costs and perfect the judgment and cause it to be entered and if he fails so to do the clerk of the court shall prepare and enter the proper judgment, but without costs. If there be a stay of proceedings after the filing of the findings or verdict judgment may be perfected at any time within sixty days after the expiration of such stay. `No execution shall issue until the judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment or until the expiration of the time for taxing costs."
The provisions of this section of the statutes are a sufficient answer to the defendant's final contention.
By the Court. — Judgment affirmed.