Opinion
No. 75-444.
Submitted on briefs November 2, 1977. —
Decided January 3, 1978.
APPEAL from an order of the circuit court for Waushara county: A. DON ZWICKEY, County Judge of Waupaca county, Presiding. Affirmed.
For the appellants the cause was submitted on the briefs of Robert I. Perina, Robert D. Hoyt, and Perina Hoyt of Madison.
For the respondents Herman C. Radue and Employers Mutual Liability Insurance Company of Wisconsin, the cause was submitted on the brief of R. Rouse and Jones, Larson, Charnholm, Anderson Rouse of Wausau.
There was a joint brief by Leon S. Schmidt, and Schmidt, Thibodeau Schmidt of Wisconsin Rapids, for Raymond Oestreich and State Farm Mutual Insurance Company; by John W. Kelley, and Kelley, Weber Bolte of Wausau, for Herman C. Radue and Employers Mutual Liability Insurance Company of Wisconsin; and by Arthur L. Eberlein of Wausau, for Raymond Oestreich.
FACTS.
The plaintiffs, John J. Koele and his wife, Carrie Koele, brought this action for personal injuries against the estates of Elsa A. Radue and Roland N. Oestreich, and their insurers. The case arose out of a head-on two-car collision on Highway 51 in the township of Coloma in Waushara county. On September 19, 1973, the plaintiff, John Koele, was driving a pickup truck south on Highway 51, when a car driven by Elsa A. Radue coming in the opposite direction suddenly veered into his southbound lane. Elsa Radue and the passenger in her car, Roland Oestreich, were killed instantly.
On July 8, 1974, plaintiff John Koele and his wife commenced this suit for damages for personal injuries sustained. On May 16, 1975, the jury found that Elsa Radue was the driver of the car and that she was causally negligent. The jury awarded the plaintiffs damages in the amount of $247,100.36. The plaintiffs moved for judgment on the verdict against all of the defendants on the grounds that the driver Elsa Radue was the agent of the owner of the car, Roland Oestreich. The trial court granted this motion. The defendants moved to reduce the damage awards or in the alternative for a new trial. The trial court found that the award of damages was excessive, set aside the awards for personal injuries, future medical expenses, future wage loss and loss of consortium, and granted a new trial as to these awards unless the plaintiffs elected to take judgment in reduced amounts, totaling $55,000. The plaintiffs appeal the trial court's order granting defendants' motion to reduce damages awarded by the jury.
The sole issue on this appeal is whether the trial court acted properly in setting aside the jury's award of damages and granting a new trial unless the plaintiffs elected to take judgment on the reduced amounts set by the trial court.
Where in response to motions after verdict a trial court fully reviews the evidence as to damages and concludes that the award is or is not excessive, the sole question on appellate review is whether this determination was an abuse of discretion. On review this court must, like the trial court, view the evidence in the light most favorable to the plaintiff. Where the trial court's analysis of the evidence upon which it approves or rejects a jury's damage award is complete, the reviewing court need not review the entire record as a matter of first impression and ascertain whether, in its judgment, the verdict is excessive. Instead, this court will review the evidence only to the extent necessary to determine whether the trial court abused its discretion.
Karl v. Employers Ins. of Wausau, 78 Wis.2d 284, 304, 254 N.W.2d 255 (1977).
Kobelinski v. Milwaukee S. Transport Corp., 56 Wis.2d 504, 525, 202 N.W.2d 415 (1972), citing Bash v. Employers Mut. Liability Ins. Co., 38 Wis.2d 440, 157 N.W.2d 634 (1968); Baumgarten v. Jones, 26 Wis.2d 703, 133 N.W.2d 346 (1965).
Id. at 525, citing Young v. Anaconda American Brass Co., 43 Wis.2d 36, 168 N.W.2d 112 (1969); Burke v. Poeschl Brothers, Inc., 38 Wis.2d 225, 156 N.W.2d 378 (1968).
Id. at 525, citing Murawski v. Brown, 51 Wis.2d 306, 187 N.W.2d 194 (1971); Makowski v. Ehlenbach, 11 Wis.2d 38, 103 N.W.2d 907 (1960). See also: Karl v. Employers Ins. of Wausau, supra, n. 1, at 304, 305.
In applying this abuse of discretion test to a finding of excessive damages, each case must be considered on its own facts and record. In the case before us, it appears from the record that the plaintiff was fifty-five years old when the accident occurred and sustained the following injuries: comminuted fracture of the tibula and fibula of the right leg, lacerations on the face and hand, abrasions of the left leg, contusions to the upper body, broken ribs, internal bleeding in the abdomen and bruises and injury to the back and neck. For these injuries, the jury awarded damage as follows:
Id. at 525, citing Springen v. Ager Plumbing Heating, Inc., 19 Wis.2d 487, 493, 120 N.W.2d 692 (1963).
The trial court filed a memorandum opinion which thoroughly analyzed and evaluated the evidence as to damages and pointed out in which respects that evidence did not support the jury verdict. No abuse of discretion has been demonstrated on this appeal. The trial court's conclusion that the damages awarded were excessive and shocked the conscience of the court is upheld.
When the trial court set aside the damage awards it offered the plaintiffs the Powers option of taking judgment in a reduced amount. The second shell fired in the plaintiffs' double-barreled challenge to the trial court's order is aimed at the figures set by the trial court as reasonable awards. These amounts will be upheld unless they represent an abuse of discretion. As our court has held: "If there is a reasonable basis for the trial court's determination as to the proper amount, it will be sustained." It follows that: "[I]t is only in an unusual case that we will disturb the amount which the trial court has fixed as reasonable for the purpose of granting the plaintiff an option to accept judgment in that amount in lieu of a new trial on damages." Where an award as reduced by the trial court is within the range of a reasonably debatable amount, there is no abuse of discretion and the order of the trial court reducing the jury award in the amount that it did will be affirmed."
Powers v. Allstate Ins. Co., 10 Wis.2d 78, 102 N.W.2d 393 (1960). In Powers, this court adopted the rule followed in other states and in the federal courts that: ". . . where an excessive verdict is not due to perversity or prejudice, and is not the result of error occurring during the course of trial, the plaintiff should be granted the option of remitting the excess over and above such sum as the court shall determine is the reasonable amount of plaintiff's damages, or of having a new trial on the issue of damages." Id. at 91, 92. The option procedure has been codified in sec. 805.15(6), Stats. 1975.
Lutz v. Shelby Mut. Ins. Co., 70 Wis.2d 743, 759, 235 N.W.2d 426 (1975). See also: Kobelinski v. Milwaukee S. Transport Corp., supra, n. 2, at 525.
Id. at 759, citing Moritz v. Allied American Mut. Fire Ins. Co., 27 Wis.2d 13, 133 N.W.2d 235 (1965).
Boodry v. Byrne, 22 Wis.2d 585, 595, 126 N.W.2d 503 (1964).
Kobelinski v. Milwaukee S. Transport Corp., supra, n. 2, at 525, citing Makowski v. Ehlenbach, supra, n. 4.
Id. at 525, 526.
If there would be precedential value in our setting forth a detailed analysis of the evidence in this record as to each element of damage, as the trial court did in finding the damage awards excessive and reducing them, we would do just that. However, our court has made clear that ". . . great care must be exercised in considering other cases with comparable injuries," and has held that ". . . each case must be considered on its own facts and record. . . ." With these rules in mind, we limit our opinion to the statement that, after a review of the record we conclude there was here no abuse of discretion in either the finding of excessiveness or the amounts to which the trial court reduced the jury awards. The trial court reduced: (1) The award for past and future injuries from $100,000 to $40,000; (2) the award for future medical expenses from $4,000 to $3,000; (3) the award for future wage loss from $88,000 to $10,000; and (4) the award to Mrs. Koele for loss of consortium from $30,000 to $2,000. We conclude that the reduced awards are within a reasonable range.
Id. at 525.
Id. at 525.
There remains the contention of the plaintiffs that the trial court erred in not permitting the plaintiffs' economic expert to testify to the method of calculating future wage loss. At trial the plaintiffs' counsel conceded that such expert testimony was based on the assumption that John Koele was permanently and totally disabled and would never work again. In finding the jury award of $88,000 for future wage loss to be excessive, the trial court analyzed in detail the expert medical testimony offered by the plaintiffs to prove the permanency of John Koele's disabilities. One doctor testified that, in his opinion to a reasonable medical certainty, the chances were good that a future osteotomy operation would substantially alleviate John Koele's pain and disability. The other medical expert testified ". . . how much he will improve [from future surgery] I honestly don't know." An award for loss of earning capacity must be supported by expert testimony. A jury may not infer a permanent loss of earning capacity from evidence of permanent injury in the absence of some additional evidence to support such loss. Although the record does sustain a finding of some permanent disability and some loss of future earning capacity, the record does not sustain a finding of total disability and total loss of earning capacity. The jury's award of $88,000 approximates the wage loss, reduced to present value, which would occur if John Koele never works again. It follows that the proffered testimony of the economic expert that was based on the assumption of permanent and total loss of earning capacity would here have been within the realm of mere possibility or conjecture, and was properly rejected by the trial court.
Ostreng v. Lowrey, 37 Wis.2d 556, 155 N.W.2d 558 (1968).
Sampson v. Laskin, 66 Wis.2d 318, 334, 224 N.W.2d 594 (1975), citing Wells v. National Indemnity Co., 41 Wis.2d 1, 11, 162 N.W.2d 562 (1968).
Drexler v. All American Life Casualty Co., 72 Wis.2d 420, 432, 241 N.W.2d 401 (1976).
By the Court. — Order affirmed.