Opinion
September 10, 1958 —
October 7, 1958.
APPEAL from a judgment of the circuit court for Winnebago county: HELMUTH F. ARPS, Circuit Judge. Reversed.
For the appellants there was a brief by McLeod, Donohue Colwin of Fond du Lac, and oral argument by Joseph D. Donohue.
For the respondent there was a brief by John P. McGalloway, attorney, and William D. McGalloway of counsel, both of Fond du Lac, and oral argument by William D. McGalloway.
This appeal presents questions relative to the pecuniary loss sustained by a mother from the death of her daughter. The daughter, Rosemary Bohlman, was killed in an automobile accident on June 1, 1956, concededly as a result of the actionable negligence of the defendant Nelson. In the action by Rosemary's mother, as administratrix of her estate, against Nelson and his insurer, the only issues submitted to the jury were those of damages. Special damages were stipulated as $1,355.28. In its answers to the questions of the special verdict, the jury fixed the mother's damages for loss of society and companionship at $10,000 and for pecuniary loss at zero.
The trial court reduced the award for loss of society and companionship to the statutory maximum of $2,500, set aside the negative answer with respect to pecuniary damages, and gave plaintiff the option of accepting $1,500 as damages for loss of future support or having a new trial on the issue of damages. Plaintiff elected to accept the $1,500 for loss of future support, and judgment was accordingly entered in her favor for the total amount of $5,355.28 plus costs. Defendants appeal.
The material facts are practically undisputed. At the time of her death Rosemary was twenty-three years old, unmarried, and in good health. She was the youngest of five children. The mother had been divorced from Rosemary's father in 1935 and in recent years the father was out of touch with the family and did not contribute materially to the mother's support. Ever since her graduation from high school, Rosemary had lived in her mother's home and had been employed by the telephone company. She had received a promotion and wage increases, and in the year preceding her death her earnings were $2,855. She helped at home with the housework, regularly paid her mother $20 per week except during a period of illness in 1954, gave her mother gifts including four or five dresses per year, hats, shoes, other articles of clothing, and permanents, regularly took her mother out for dinner on Sundays and holidays, and regularly paid the telephone bill. She had made gifts of furniture, such as a cedar chest, table, kitchen set of table and chairs, dining-room chairs, lamps, a dinette set, blankets and bedding, made the payments on a television set, and had paid $500 toward the cost of an automobile, title to which was placed in her mother's name and in which she took her mother for rides. She was very close to her mother, and her mother was her main concern. She left no property, having used all her own earnings for her own purposes and her payments and contributions to her mother, to whom she was generous.
Rosemary associated mostly with girls and had no steady boy friend. She had no hope chest, and apparently no plans or expectations looking toward marriage. While she was on a dinner date with a young man at the time of the fatal accident, it was her first date with him and she went with him only at her mother's urging.
The mother was sixty-two years of age, in poor health and under a doctor's care. She was not able to do much housework. She had long been a partial invalid, and earlier in the year she had had an operation and spent nine weeks in a hospital. Two of her sons were married, had families, and contributed nothing to her support. Another son was divorced and lived with the mother at the time of Rosemary's death, paying her $20 per week, but he married again and left home a few months later. Another daughter was also divorced and lived in the mother's home with her two children, where she did most of the housework. This daughter also remarried soon after Rosemary's death.
The mother had inherited some $14,000 in recent years, and at the time of Rosemary's death had about $5,000 in a bank and owned a house from which she had received $50 or $60 per month rental, but which at the moment was unoccupied because of remodeling. She had a few hundred dollars coming from an estate, but had no income other than her rents. She did not own the house in which they lived, but rented it for $32 per month.
The case was submitted to the jury at 4:44 p.m., and the verdict was returned at 5:36. In holding the verdict perverse the trial court said:
"The perversity reflected by the jury's verdict is all too apparent. It is evident that the jury wanted to award Florence Bohlman the sum of $10,000. Naturally, and properly, the jury was not informed that the maximum recovery for loss of society and companionship was the amount of $2,500. The court can only conclude the jury reached the determination that as long as Florence Bohlman received $10,000, she would thereby be compensated for all elements of damages — society and companionship, as well as pecuniary loss or future loss of support — thereby completely ignoring the court's instruction and completely ignoring the undisputed evidence.
"The conclusion inevitably follows that the verdict as returned cannot be permitted to stand because of perversity and as being contrary to the interests of justice, and because of inadequacy and complete failure to assess pecuniary loss sustained by Florence Bohlman in the way of support and financial assistance which the mother might reasonably expect following the date of her daughter's death."
There must be a new trial on the disputed issues of damages sustained by the mother.
1. New trial interest of justice. We should have no difficulty in sustaining that part of the trial court's order which directs a new trial on the damage issues in the interest of justice, were it not for the alternative granted plaintiff to take judgment. The trial court may in the exercise of a proper discretion order a new trial in the interest of justice when a jury's verdict is against the great weight of the evidence, even though it cannot be held as a matter of law that the answer is wrong. Guptill v. Roemer, 269 Wis. 12, 19, 68 N.W.2d 579. The trial court has wide discretion in such matters, and while an order so made is not beyond review, it will not be reversed unless it clearly appears to be an abuse of discretion. Bolssen v. Heenan, 3 Wis.2d 110, 116, 88 N.W.2d 32. In the case at bar we not only find no abuse of discretion, but consider the learned trial judge amply justified in directing a new trial on the damages issues, for the reasons stated by him in his opinion, part of which is quoted above.
2. Option to take $1,500 for pecuniary loss. A majority of the court are of opinion that the trial court went too far in permitting the plaintiff to accept $1,500 damages for her pecuniary loss as an alternative to a new trial on the damages issues, and to enter judgment based on that amount. We agree with the trial court that some pecuniary damage was established, but the majority consider that the evidence does not sustain the figure of $1,500 as the minimum.
It is settled in this state that where unliquidated damages found by a jury are "clearly inadequate" the court may extend to plaintiff the option of taking judgment for "the least amount that an unprejudiced jury [properly instructed] would probably find," or having a new trial on the issue of damages. Risch v. Lawhead, 211 Wis. 270, 278, 248 N.W. 127; Asplund v. Palmer, 258 Wis. 34, 40, 44 N.W.2d 624. See also Campbell v. Sutliff, 193 Wis. 370, 379, 382, 214 N.W. 374. The question on this branch of the case is, therefore, whether $1,500 is the least amount an unprejudiced jury, properly instructed and conscientiously trying to do its duty, would probably find as the pecuniary loss suffered by Rosemary's mother as the result of her death.
We cannot agree with appellants that the evidence sustains the jury's finding that there was no such pecuniary damage whatever. On the contrary, we consider the trial court justified in concluding that,
"Here the evidence without contradiction shows substantial, continued support in the past, with every fact pointing to continued support of the mother in the future on the part of Rosemary Bohlman."
Rosemary had established a pattern in the several years following her graduation from high school, of working at the telephone company, paying $20 per week to her mother, making substantial gifts of clothing and furniture, helping with the housework, contributing substantially to the purchase price of such items as automobile and television set, taking her mother out to dinner at least weekly, paying the telephone bill, and the like. The monetary and tangible contributions must have averaged well over $1,200 per year, aside from the help with the housework. Rosemary was generous to her mother, had used all her earnings for the purposes mentioned and her own support, and her earnings were increasing. While she was of marriageable age, the evidence is undisputed that she had no marriage plans, no steady beau, and apparently no immediate expectations in that direction. The mother was in poor health, but she had an expectancy of 13.47 years according to the mortality tables, and there was no evidence that death was likely to come within a few months. She had insufficient income for her needs, and while she was not a pauper her principal could not sustain her many years.
Where a pattern of this sort has been set, a finding of no pecuniary damage whatever should not be sustained simply because no one can be sure that the pattern would have continued. Of course either mother or daughter might have died at any time and Rosemary might have lost her health or married suddenly; but the balance of probabilities should govern, rather than mere speculation as to possibilities. Since the evidence showed the probability of continuing support for a substantial period of time, with no evidence that discontinuance was probable or likely in the immediate future, the finding of no pecuniary loss was properly set aside.
The case of Boyle v. Larzelere, 245 Wis. 152, 13 N.W.2d 528, relied on by respondent, is distinguishable. There the evidence warranted the conclusions that the deceased daughter "was only staying at home until she `got married or something,'" the parents "were likely to be deprived of her services at any time," and she was not "likely to contribute to the family income for any ascertainable time." In the present case the likelihood appeared to be that contributions would continue for a substantial period of time.
While the jury's negative verdict on pecuniary loss cannot stand, the majority of this court are unable to find adequate basis in the evidence for a determination that $1,500 was the least amount that an unprejudiced jury, properly instructed, would probably find. The daughter made substantial pecuniary contributions to the mother, but the mother supplied the daughter with food, shelter, utilities, and the like, to some undisclosed extent. The record is devoid of proof as to how much it cost the mother to supply these items, and hence there is no basis for determining how much of Rosemary's contributions represented net pecuniary gain. On the basis of common knowledge, the inference is inescapable that Rosemary contributed something beyond the cost of her keep; but the record does not contain sufficient basis for determining how much. The real controversy on that point has not been fully tried. Therefore there should be a new trial on the question of pecuniary loss.
Since the trial court properly considered that the jury's appraisal of damages for loss of society and companionship probably included an increment for pecuniary loss, the new trial should extend to the question of damages for loss of society and companionship.
By the Court. — Judgment reversed, with directions to grant a new trial on the questions of the mother's damages for loss of society and companionship and for pecuniary loss.
MARTIN, C.J., took no part.