Opinion
October 26, 1964 —
November 24, 1964.
APPEAL from the order of the circuit court for Chippewa county: CLARENCE E. RINEHARD, Circuit Judge. Reversed and remanded for further proceedings.
For the appellant there was a brief and oral argument by Robert R. Gavic of Spring Valley.
For the respondent there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Arthur Wickham of counsel, and oral argument by Thomas N. Klug, all of Milwaukee.
Suit by the plaintiff to recover damages received in an automobile accident involving the defendant. The trial court set aside the jury verdict on damages and negligence and ordered that a new trial be had in the interest of justice.
The plaintiff owned a farm of about 75 acres but worked full time as a construction worker for the Johnson Construction Company. On the day of the accident, plaintiff was headed north on Highway 53 out of Chippewa Falls. Francis Traynor and Ed Moldenhauer were passengers in the plaintiff's pickup truck. The parties intended to turn left on a town road running east and west. David Larson, in his van truck, who was also headed north toward Rice Lake to pick up beer, was following the plaintiff. John Miller was a passenger in the van truck. Larson described the van truck as a square box, higher than the average truck, and wider and higher than a car.
The weather was misty, and the plaintiff had his windshield wipers on. About 500 feet south of the intersection, the plaintiff turned on his signal light and began slowing down.
The defendant was driving his father's Buick, heading in the same direction as the plaintiff's pickup truck and the van truck and following both of them. The defendant, driving at a speed of 50 to 55 miles per hour, noticed that he was gaining on the van truck and decided to pass. The terrain at the intersection was flat. The defendant did not notice the plaintiff's pickup truck until he was next to the van truck.
While the defendant was passing the van truck, the plaintiff began his left turn. The defendant did not see the turning pickup truck until he was too close to avoid the collision. The plaintiff did not see the defendant until after the accident. The plaintiff did not see the defendant attempting to pass the van truck. The collision occurred when the pickup truck was almost on the town road. The Buick struck the pickup truck in the left front door, injuring the plaintiff.
A conflict in the plaintiff's testimony is apparent here. On adverse examination, the plaintiff stated he was 75 to 100 feet south of the intersection as he began the turn. On trial, the plaintiff estimated the distance was 25 to 50 feet south of the intersection.
A short time after the accident the plaintiff started to feel pain in his head, back, and neck. Despite these pains, the plaintiff continued to drive the pickup truck to the destination.
The plaintiff went to see his own doctor, Dr. Docter, the next day. Four or five days later, the plaintiff returned to work. His work continued but was sporadic due to the pain. The last day that he worked for the construction company was January 14 or 15, 1962. The plaintiff consulted other doctors concerning his continuing pain.
The jury found the plaintiff not negligent and that the defendant was causally negligent. The damages award was as follows:
36,000.00
Damage to the automobile $ 325.00 Medical expenses 687.00 Loss of earnings 6,000.00 Compensation for injuries Total $43,012.00The trial court set this verdict aside and granted a new trial in the interests of justice. It based this decision on the following circumstances. In the suit against the defendant, the alleged insurer, Northwestern National Insurance Company, and the defendant's father were joined as party defendants. Motions by defendants to dismiss the action against the father and the Northwestern National Insurance Company were granted. The court stated that the plaintiff's cause of action was actually against the Northwestern National Casualty Company. The jury was then advised that these defendants were no longer in the case and that the trial would continue against the defendant alone.
In his memorandum decision the trial judge stated:
"This development with reference to insurance where `now you see it, now you don't' appears to have unsettled the jury, creating the impression that the name of an undisclosed insurance carrier was being withheld and giving rise to an adverse feeling toward the defense of the case which, in turn, was reflected by the answers in the verdict both with respect to inquiries as to the conduct of the drivers and as to the amount of damages sustained by the plaintiff. Accordingly there must be a new trial in the interest of justice on all issues. Parties are entitled to a fair trial and where there is ample reason to indicate that bias or prejudice has affected the verdict it cannot stand."
The order granting the new trial stated that the memorandum opinion is incorporated in the order. The plaintiff has appealed from this order.
The trial judge saw fit to order a new trial in the interests of justice. The authority of the trial court to do so is set forth in sec. 270.49(2), Stats. The statute requires that when a new trial is ordered on this ground, the judge shall set forth his reasons in detail.
"Every order granting a new trial shall specify the grounds therefor. In the absence of such specification, the order shall be deemed granted for error on the trial. No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein or the memorandum decision setting forth such reasons is incorporated by reference in such order. The court may grant or deny costs to either party."
Numerous cases before this court have interpreted this provision. We have heretofore held that an order for a new trial in the interests of justice cannot be sustained unless the judge's reasons are set forth in the requisite detail. Guptill v. Roemer (1955), 269 Wis. 12, 68 N.W.2d 579, 69 N.W.2d 571; Dowd v. Palmer (1944), 245 Wis. 593, 596, 15 N.W.2d 809; Buetow v. Hietpas (1948), 253 Wis. 64, 33 N.W.2d 201; Bradle v. Juuti (1950), 257 Wis. 523, 44 N.W.2d 242; Peters v. Zimmerman (1957), 275 Wis. 164, 170, 81 N.W.2d 565.
We have also held that the reasons for the judge's action must be set forth in the order or set forth in a separate memorandum or decision. That memorandum to be effective must be incorporated by reference in the order. Guptill v. Roemer (1955), 269 Wis. 12, 20a (Rehearing), 69 N.W.2d 571.
The statute makes it clear that the legislature, in granting to the trial judge the power to upset a jury verdict, required that reasons for such action be set forth. To fail to provide any reasons results in an order that must be reversed. It also follows that if the reasons set forth are patently inadequate or fail to give some evidence that justice has miscarried, the order is equally ineffective.
It is our opinion that the memorandum which was incorporated by reference in the order for a new trial was inadequate. As set forth in the statement of facts, the respondent did move for the dismissal of the insurance company that was originally a party defendant. It became known, at least to counsel, during the course of the trial that the insurance company originally made a defendant was not the liability insurer but was merely the carrier for collision and comprehensive coverage for the insured's automobile, and therefore was not properly concerned in this lawsuit. The respondent's motion was granted.
The trial judge avers in his memorandum that this dismissal "unsettled the jury," creating the impression that the name of an undisclosed insurance company was being withheld.
We find it contrary to experience and reason to hold that the absence of an insurance company as a party defendant would be likely, at least in the absence of further facts, to result in an adverse feeling toward the defendant. The experience in this state and elsewhere leads us to conclude that when there is no insurance company named as a defendant, it is commonly believed that lower verdicts are likely to result. It is the view of many state legislatures that allowing the direct joinder of an insurance company results in larger, if not excessive, verdicts. We do not believe that the Wisconsin experience bears this out. However, the respondent's contention that the dismissal of the insurance company would be likely to result in a larger verdict is indeed a novel proposition. The dismissal of the insurance company is a result that defendants' attorneys frequently strive for, albeit with little success.
Perhaps a new trial in the interests of justice is in fact necessary. However, the condition of the record can only leave this to speculation. If the interests of justice require a new trial, sufficient reasons therefor must be set forth, and to the extent that the trial judge detailed them at all, we deem them insufficient. To the extent that any factor other than a dismissal of the insurance company may have prompted the action of the trial judge, the memorandum and order are silent. We, therefore, reverse the order of the trial court for failure to set forth with sufficient particularity the reasons for ordering the new trial.
While we cannot agree with the learned trial judge's decision that a new trial is necessary on all issues, from a review of the entire record we must conclude that the damages are excessive. To that extent, we are in full accord with what we presume to be another factor which troubled the trial judge, although this was not explicitly set forth. We, therefore, direct that a new trial be granted on the issue of damages only, or, in the alternative, to allow the plaintiff to accept an award which would represent a reasonable amount as compensation for the plaintiff's damages as may be determined by the trial judge. Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 102 N.W.2d 393; Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis.2d 568, 117 N.W.2d 660.
By the Court. — Order reversed and remanded for further proceedings. The trial court is directed to grant a new trial on the issue of damages giving the option, however, to the plaintiff in lieu of the new trial to have judgment for such reduced amount that the trial court deems reasonable. It is further ordered that the appellant be denied the taxation of costs for the brief in excess of 40 pages.
The following opinion was filed February 2, 1965:
The defendant-respondent requests that the court rule upon his motion for review made pursuant to sec. 274.12, Stats. The motions after verdict made by respondent and presented to the trial court, excepting the motion for a new trial in the interest of justice, were overruled by the trial court without memorandum opinion. These motions, in the main, contend that plaintiff was negligent as a matter of law as to lookout, and that this being so the answers to negligence and comparative-negligence questions could not stand. If the language of the opinion does not clearly reflect our opinion on these questions, let it now be said that the court in conference thoroughly considered the liability questions as presented by the motion to review. We were then, and are now, of the opinion that there was credible evidence to sustain the jury's conclusion that plaintiff was not negligent as to lookout or otherwise and that the verdict as to the liability features should be approved.
The motion for rehearing is denied without costs.