Opinion
December 2, 1952 —
January 6, 1953.
APPEAL from an order of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed.
For the appellant there were briefs by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by J. Robert Kaftan and Fred F. Kaftan.
For the respondents there was a brief by Chadek, Cornelisen, Denissen Farrell, and oral argument by Frank P. Cornelisen and E. D. Kranzush, all of Green Bay.
Plaintiff, Robert Flatley, is a traveling salesman employed by the Multiple Copy Forms Company of Green Bay. At about 5:30 p. m. on September 26, 1950, he returned to the plant of his employer, which was closed for the day. While there he was approached by Gordon Bruce, a driver for the defendant Northwestern Transfer Company of Milwaukee. Bruce was in Green Bay to pick up a cargo for Milwaukee, and a part of that cargo was a shipment of forms from the company employing the plaintiff. That shipment consisted of approximately thirty-seven cartons of printed paper forms. Plaintiff, by telephone, received permission to release the cargo. He and Bruce went into the warehouse, located the shipment, and plaintiff then undertook to assemble a conveyor which would convey the cartons of forms from the interior of the building to the rear of a loading dock on the west side thereof. He directed Bruce to proceed to the west side of the building to receive the cargo. Bruce drove his truck west through an alley along the south side of the building to the rear of the building, then north and west to get it into position. to back the truck against the loading dock, and then proceeded to back up. The rear of the truck struck Flatley and pinned his right leg between the platform and the truck, Flatley having descended from the platform to the ground to secure the last tripod to the conveyor. Plaintiff's right knee was injured as a result of the accident.
The case was tried to a jury, which returned a special verdict in favor of the plaintiff. The jury found that Bruce was causally negligent with respect to lookout and with respect to warning plaintiff of the backing movement of the truck. The jury found the plaintiff was causally negligent with respect to lookout and with respect to the place he was standing when struck. Eighty per cent of the negligence was apportioned to Bruce and twenty per cent to Flatley. The usual motions were filed and argued after verdict. The defendants argued that there was insufficient evidence to support the finding of negligence on the part of Bruce, the apportionment of negligence, and the damages awarded for loss of earnings and impairment of earning capacity. That amount of damages had been set at $11,000. There were other items of damages awarded, but this is the only one with which we are concerned here, and when reference is hereinafter made to damages that is the item and amount spoken of. The defendants also moved in the alternative for a new trial. The trial court denied the motions of the defendants so far as they affected the finding of negligence on the part of Bruce and the apportionment of negligence.
The trial court was of the opinion that the verdict should be set aside and a new trial granted because of excessive damages unless the defendants elected to permit judgment to be taken against them on the verdict in the sum of $9,000 in accordance with a first option to be given to them, or unless the plaintiff elected to take judgment for $6,000 in accordance with a second option given to him. Neither option was exercised and an order granting a new trial was entered on January 17, 1952. The plaintiff appealed from that order on April 8, 1952. On May 13, 1952, the defendants requested a review of that part of the order denying their motions relating to questions of their liability.
The plaintiff stated the questions involved as follows:
"1. Upon the evidence was the jury award for past loss of earnings and future impairment of earning capacity excessive?
"2. Where plaintiff, appealing from order granting new trial on grounds of excessive damages, serves notice of appeal on April 8, 1952, is defendant, who served request for review on May 13, 1952, entitled to review by supreme court of that part of order denying defendants' motions which object to jury's findings of negligence?"
The plaintiff contends that the court was in error in granting a new trial because the jury's award of damages was not the result of passion or prejudice; the defendants were not prejudiced thereby; and the court misinterpreted certain testimony. The trial court did not grant the new trial because of any passion or prejudice on the part of the jury, but upon the ground that the award of damages by the jury was not supported by the evidence. The trial court correctly applied the rule stated in Urban v. Anderson, 234 Wis. 280, 285, 291 N.W. 520, as follows:
"It is quite clear that in a case where the jury has returned a fatally excessive verdict, where the right to recover is clear, the court may deal with the matter whether the error is attributable to perversity, or the amount found by the jury is not supported by the evidence in the case. The whole object and purpose of giving options is to permit the parties to avoid the expense of a new trial. The granting of options is based upon the proposition that the trial court has power to thus deal with a verdict without invading the constitutional rights of either party."
This rule was affirmed in Kimball v. Antigo Bldg. Supply Co. 261 Wis. 619, 53 N.W.2d 701.
To determine the second question involved requires a consideration of subs. (1) and (4) of sec. 274.12, Stats., which read as follows:
"(1) A respondent adverse to the appellant upon the latter's appeal may have a review of any rulings prejudicial to him by serving upon the appellant at any time before the case is set for hearing in the supreme court a notice stating in what respect he asks for a reversal or modification of the judgment or order or portion thereof appealed from. . . .
"(4) When any respondent desires to review an order, judgment, or portion thereof not appealed from, he shall within thirty days after service on him of notice of appeal take and perfect his appeal or be deemed to have waived his right so to appeal."
Plaintiff appealed from the whole order, sub. (1) of sec. 274.12, Stats., applied, and defendants' request for review was timely. On this request for review the defendants again challenge the sufficiency of the evidence to support a finding of negligence on the part of Bruce and the apportionment of the negligence.
The granting of a new trial is a highly discretionary action on the part of the trial judge. Unless it clearly appears that there has been an abuse of judicial discretion this court will not disturb such action. That is equally true of the determination of the trial court in fixing maximum and minimum amounts of damages in connection with options. This applies both to the questions raised by the appeal and by the request for review.
Since there is to be a new trial, we deem it improper for us to comment at length upon the testimony in this trial. We have carefully reviewed the record in the first trial. We find credible evidence therein to support the findings of the jury except as to damages, and we cannot find any abuse of discretion by the trial court.
By the Court. — Order affirmed.