Opinion
January 7, 1964 —
February 4, 1964.
APPEAL from an order of the circuit court for Brown county: DONALD W. GLEASON, Circuit Judge. Affirmed.
For the appellant there were briefs by Cornelisen, Denissen, Kranzush Kuehn, and oral argument by David J. Condon, all of Green Bay.
For the respondents the cause was submitted on the brief of Davis, Soquet Cherney of Green Bay.
At 7 a.m. on February 5, 1959, the plaintiff, Loretta Weihbrecht, and her daughter-in-law, Frances Weihbrecht, got in the latter's automobile in order to go to work. The car had been left out on the street overnight in a temperature of at least 14 degrees below zero, but Frances was able to start the car. Frances intended to take Loretta to Loretta's job as a presser at Lindeman's Cleaners in Green Bay. Frances was driving, and Loretta was seated beside her in the front seat. Frances drove the car a short distance, but the car was sputtering, and Frances stopped the car on the city street to allow it to warm up. The evidence is in conflict as to how near the right curb the vehicle was located. The record fails to reveal the street dimensions and characteristics such as the width and the nature and number of the traffic lanes.
The defendant, Sylvester J. Linzmeyer, and his wife were driving south in the same direction as the Weihbrecht vehicle on the same street, and as they approached the Weihbrecht vehicle from the rear they observed a large cloud of vapor or exhaust covering the roadway. The Weihbrecht automobile had been parked some two to five minutes before the Linzmeyer vehicle collided with it. Mr. Linzmeyer testified that he observed a parked car in a drive near the cloud and assumed that the vapor cloud emanated from the exhaust of that vehicle. He proceeded into the cloud of vapor, and he testified that his speed was about 20 miles per hour during his progress through the cloud. On reaching the southerly edge of the cloud, he first observed the Weihbrecht car, which was then only a few feet away from him. He immediately swung the wheel to the left and applied his brakes, but a collision resulted.
At the time of the collision, the Weihbrecht car was pushed ahead from five to 10 feet. The Weihbrecht car was struck with the right front portion of the Linzmeyer vehicle. The facts relating to the plaintiff's injuries will be given in the opinion.
The jury found that the defendant Linzmeyer was 100 percent negligent, and Loretta was awarded damages of $42,415.77. The trial court reduced this amount to $12,443.02 on the basis that the original amount could not be supported by the evidence. The plaintiff's appeal is based on the contention that the trial court erred in reducing the damages awarded by the jury.
The defendants, in a cross appeal, contend that the trial court erred in failing to grant their motion for a new trial because of prejudicial remarks of the plaintiff's counsel. The exact prejudicial remarks are not in the record. After the defendants' counsel objected, the reporter was brought back into the courtroom where the defendants' counsel repeated the substance of the alleged prejudicial remarks to which he was objecting.
One such remark was to the effect that the plaintiff had told the plaintiff's counsel certain things at about the, time of the accident, but the plaintiff's counsel did not state in his argument specifically what it was that the plaintiff had told him. The counsel for the defendants contends that the effect of this remark was that the plaintiff's counsel insinuated. that if the plaintiff's statement had been placed in evidence, then it would have had some significance. The trial court ruled that the suggestion or insinuation of what the plaintiff had stated to him should not have been made since it was beyond the evidence in the case, and the court instructed the members of the jury to disregard it.
The second remark complained of by the defendants was a statement by the plaintiff's counsel relating to the cost of medical witnesses. The substance of that remark was that the plaintiff could not afford additional doctors, whereas the defendant Insurance Company had the resources to supply medical witnesses. The trial court sustained an objection to this remark and instructed the jury that the implication as to the financial ability of either side to produce witnesses should also be avoided. In the decision on the motions after verdict, the trial court stated that the two complained-of remarks of the plaintiff's counsel were improper but not prejudicial.
A procedural issue is raised by the plaintiff. Motions after verdict were originally scheduled for hearing on January 21, 1963, which was thirty-nine days after the verdict. On that day, Attorney M. E. Davis, one of the defendants' attorneys, advised the court by telephone of his inability to appear for the oral arguments, and thereupon the hearing was adjourned. On February 6, 1963, the court entered an order extending the time to decide the motions after verdict. This was then approximately fifty-six days after the verdict was returned. The order provided that oral arguments on the motions would be held March 11, 1963, and the hearing was so held.
The order extending the time for the decision on the motions after verdict recited the circumstances relative to Attorney Davis' telephone call and further stated that Attorney Eugene Kranzush, representing the plaintiff, had advised the court that he was leaving the city on February 7, 1963, and would be absent until February 20, 1963. The order provided that the brief of the defendants should be filed with the court on or before February 15, 1963, and the brief of the plaintiff should be filed on March 1, 1963. The word "cause" did not appear in this order of February 6, 1963.
The plaintiff appeals from the order granting a new trial to the defendants, Linzmeyer and his insurer, unless the plaintiff elected to take judgment in the reduced amount. The defendants, Linzmeyer and his insurer, cross-appeal, contending that the trial court erred in not finding both Loretta and Frances Weihbrecht each 33 1/3 percent negligent as a matter of law. These defendants further contend that the trial court erred in not granting them a new trial as to all issues because of the prejudicial remarks of counsel for the plaintiff.
Statutes Involved.
"270.49 MOTION FOR NEW TRIAL ON MINUTES. (1) The trial judge may entertain a motion to be made on his minutes, to set aside a verdict and grant a new trial because of errors in the trial or because the verdict is contrary to law or to the evidence, or for excessive or inadequate damages or in the interest of justice; but such motion must be made and heard within sixty days after the verdict is rendered, unless the court by order made before its expiration extends such time for cause. When an appeal is taken from the order on such motion a bill of exceptions must be settled. Such motion, if not decided within the time allowed therefor, shall be deemed overruled. In case judgment be entered without deciding a pending motion for a new trial, the supreme court may direct the trial court to determine such motion within sixty days after notice of filing the remittitur."
"269.45 ENLARGEMENT OF TIME. (1) The court or a judge may with or without notice, for cause shown by affidavit and upon just terms and before the time has expired, extend the time within which any act or proceeding in an action or special proceeding must be taken, except the time for appeal.
"(2) After the expiration of the specified period or as extended by any previous order, the court may in its discretion, for like cause, upon notice, extend the time where the failure to act was the result of excusable neglect; except the time for appeal."
Extension of Time on Motions After Verdict.
The trial court ordered a new trial unless the plaintiff exercised the option to accept damages reduced from the jury's award of $42,415.77 to $12,443.02. The order of the trial court was made on April 11, 1963, which was over sixty days after the verdict was rendered. The first question to be resolved on this appeal is whether the trial court retained the right to rule on a motion to set aside the verdict and grant a new trial. Sec. 270.49 (1), Stats., provides in part that such a motion "must be made and heard within sixty days after the verdict is rendered."
The appellant points out that the order which was entered by the trial court on February 6, 1963 (fifty-six days after the verdict was rendered), was effected without notice and without cause shown by affidavit. It is the appellant's contention that under sec. 269.45 (1), Stats., the cause for the extension of time must be shown by affidavit. She also contends that the entitlement to notice is inherent in due process.
In our opinion, the order extending the time for deciding motions after verdict was properly made by the trial court. The matter is governed not by sec. 269.45 (1), Stats., but rather by sec. 270.49 (1). The latter statute permits the trial court to enter such order ex parte and without an affidavit. Sec. 270.49 (1) does require that "cause" be evidenced, but this can be done without the use of the word "cause" or any other special terminology. So long as the order reflects the reasons for the entry of the order and so long as such reasons fairly constitute cause, the extension order qualifies under sec. 270.49 (1), even though it is made without notice and even though it is not based upon an affidavit. Harweger v. Wilcox (1962), 16 Wis.2d 526, 532, 114 N.W.2d 818. The appellant relies on Boyle v. Larzelere (1944), 245 Wis. 152, 13 N.W.2d 528, which case contains language that cannot be harmonized with our holding in Harweger, supra. The Harweger Case followed the Boyle Case, and, so far as they are in conflict, the Boyle Case is deemed modified by the Harweger Case.
The extension of time to decide motions after verdict is a matter of procedure. Briggson v. Viroqua (1953), 264 Wis. 40, 45, 58 N.W.2d 543, suggests that notice is not a right of due process in matters which are purely procedural.
The Damages.
The trial court made a major reduction in the damages which could be received by the plaintiff. Judge GLEASON thoroughly analyzed the medical evidence, and we are persuaded that there was no abuse of discretion in the trial court's order with reference to damages.
At the time of the impact, the plaintiff was thrown backward and then forward by the impact, and she testified that she thereafter felt discomfort in her neck, which pain later began moving down her spine. After the accident, she and her daughter-in-law walked back to their home. Loretta was crying and complaining about the pain in her neck. The testimony is in conflict, but the trial judge concluded that Loretta was admitted to the hospital on February 6, 1959, the day after the accident. Loretta was hospitalized about two weeks, and on her release she purchased a belt-type traction device which she has used every night since the accident, except for periods of hospitalization. She also uses an orthopedic mattress with a board underneath it. She was later hospitalized for two days in August of 1959, and she was also given traction and orthopedic treatment.
She returned to the hospital for the third time in March, 1960, when a myelogram was taken. Surgery was performed on that occasion, and a herniated disc was located and removed. Loretta was hospitalized about twelve days on this occasion in March of 1960. She returned to the hospital on December 18, 1960, and remained there until December 24, 1960, and while there received traction and orthopedic treatment. She was hospitalized for the fifth time from February 28 to March 8, 1961, and a sixth time from the 19th to the 31st of July, 1961. From December 24 to December 27, 1961, she was hospitalized, and again from December 8 to December 10, 1962, when she was released to attend the trial but under the condition that she wear a cervical collar.
Loretta's primary complaints since the accident have been pain and stiffness in the back and neck. She has been unable to sleep well because of the traction device, and she has lost the sense of pressure in her hands, with the consequence that she is apt to drop things without knowing it. Her weight has dropped from 235 pounds at the time of the accident to 145 pounds at the time of the trial, and Loretta attributed the weight loss to pain.
The testimony of the several physicians who treated Loretta is in conflict as to the extent and nature of her injuries, and there also is a conflict in the opinion of the medical experts as to what occurrences Loretta's symptoms may be attributed. There is evidence that Loretta sustained injuries to her back in an automobile accident in May, 1955, and a further back injury in an automobile accident in August, 1957. One doctor testified that, in his opinion, Loretta would require two weeks per year of hospitalization for the rest of her life.
Loretta had been employed as a presser for three days at the time of her injury, and her rate of pay from this employment with Lindeman's Cleaners was $1 per hour. She had previously worked outside the home on various employments but had not been working for some time prior to taking the employment with Lindeman's Cleaners. Loretta is a woman of limited education and has no special training or skill. At the time of the trial she was fifty-four years of age.
There is evidence that Loretta suffers from ailments other than her back condition, such as asthma. She has been hospitalized on a large number of occasions prior to the 1959 accident. There was medical testimony that Loretta is not able to engage in any work except that of a sedentary nature.
As previously noted, the trial court meticulously examined the evidence as to damages. It was noted that there was a relatively minor impact. We agree with the following expression on the part of the trial judge:
"If the medical testimony most favorable to the plaintiff is accepted, namely, that of Dr. Warpinski and Dr. Oudenhoven that she had a herniated disc (and which was removed by surgery), there are no special circumstances distinguishing such injury from that of any ordinary herniated disc.
"The sum of $42,415.77 includes not only loss of earnings but also an award for past and future pain, suffering, and discomfort, and it is the conclusion and judgment of the Court that such sum, considering all of the items of damage which it is intended to cover, is excessive, because the evidence will not support the same. Even under the rule that the evidence must be considered in the light most favorable to the plaintiff, the total award is declared excessive, because the evidence, considered in that light, will not support it."
The Cross Appeal.
On their cross appeal, the respondents have asked us to determine that the plaintiff and her daughter-in-law were negligent as a matter of law. This argument is based upon the fact that the plaintiff's daughter-in-law failed to park as near to the curb as was possible and that the plaintiff remained in the car without complaining even though she should have known the parking was improper. Linzmeyer also contends that he was not entirely at fault because another automobile nearby was expelling exhaust fumes. We find no merit in these contentions. The jury reasonably concluded that the daughter-in-law was not negligent with respect to the position in which she stopped her automobile, and the evidence supports the finding that Linzmeyer was solely at fault.
The respondents on cross appeal further argue that there was improper argument to the jury on the part of plaintiff's counsel and that a new trial should be granted. The precise verbiage of the alleged improper argument does not appear in the record, but the record does disclose the general nature of such argument, and we have recited the circumstances earlier in this report. Based thereon, we find no merit in this contention. In each of the two instances of which the respondents complain, the court sustained the objection and properly instructed the jury in regard thereto. We agree with the trial court that the remarks of counsel were improper but not prejudicially so.
We conclude that the order of the trial court should be affirmed both as to the plaintiff's appeal and as to the cross appeal The defendants Linzmeyer and Travelers Indemnity Company are entitled to costs, but not for the last 10 pages of their brief which relate to their cross appeal.
By the Court. — Order affirmed.