*1 618 wife, Appellants, Farm Mutual State Company, Respondent.* Insurance
Automobile 2 June 1959. June * denied, costs, with on October rehearing for $25 Motion *2 there For was a brief and oral appellants argument Quick Bernstein, William and B. Acе both F. of Milwaukee. For the there awas brief and respondent oral argument Regan Thomas J. of Milwaukee. be re- hereinafter will Mrs. Broadfoot, J. that she contends this Upon
ferred to as the plaintiff. record, evidence, amply supports as shown by fair trial an im- and full of damages; award jury’s had; that instructed was fair-minded jury properly partial, evidence and vital medical failed to consider the trial court a conflict is based on solely fоr a new trial that the order and the In the trial judge jury. between human judgment that the court substituted merely maintains effect the plaintiff is for that of the This jury. argument its own judgment of the memorandum decision filed analysis based upon trial did not indicatе contended that the herein. It is showed on the prejudice that the verdict jury passion manner the nor did it recitе in what verdict of the jury, part *3 the was to evidence. contrary on this is the by The issue of appeal governеd provisions 270.49, Stats., sec. which motions be provides may a verdict and for a new trial and the trial made to set aside the court such motions upon following may grant grounds: trial; is in the the verdict Errors to law (2) contrary (1) evidence; оr or or the excessive (3) inadequate damages; a in interest The order aside justice. setting jury the of (4) statutory must thе and a new trial specify verdict granting the ground which it is based. Stating statutory ground upon in is the unless the new trial ordered thеrein is sufficient in case the reasons that prompted interest of which justice, in therein. to make such order must be set forth detail the court 42, Dittmanv. Western & Co. 267 Wis. Casualty Surety 436. The which the statutory 64 N. (2d) ground upon W. its is that the were court based order excessive. damages under the statute. Upon This was sufficient ground not to be disturbed unless it such are clearly orders appears judicial an abuse of discretion. there has been Blong Ed. 820; 79 N. W. (2d) & Co. 274 Wis. Flatley Schuster
621 v. American Automobile Ins. Co. 262 Wis. W.N. (2d)
The in figure selected the granting is, course, low be of and should not option to interpreted that it mean the actual amount of the approximates damages. record the The discloses that sustain did serious plaintiff as a result of the collision. tо a injuries She went hospital X where were taken that rays disclosed fractures. no How- ever, her as as well рhysician, testified that she plaintiff, shoulder, severe to received bruises the left left thigh, groin, knee, chest, and and thе and shock, left that she suffered and back strain which were wryneck, severe and painful. XThe an arthritic in rays showеd condition the back and neck that existed to the date of prior the accident. The medical indicated that the testimony she injuries received as a result of the collision and aggravated hastened the onset arthritis, of of and that because the combination she had suffered to the time of the pain trial and will continue to suffer and in the pain discomfort future.
Prior to the date of accident she had for a applied as file clerk position with treasury department of United States its internal revenue service office in 3, 1956, Milwaukee. On shе was examined August for the civil service His examination physician commission. was directed her vision for the mainly рurpose functional her determining any prevent that would disability *4 from the work of her. doing required He determined that was for she the and he did physicially not qualified position note functional any of the hands and disability, particularly Shе was the and commenced fingers. given position work 27, 1956, on and was still so at August the time of engaged trial. the
However, the new trial could have been awarded without and, even of option $1,500 the the amount provision though low, a reversal. it not error requiring was was prejudicial whether or not it is our to determine duty this Upon in the its discretion judiciаl granting the trial court abused the record to be in reviewing trial. The rule followed new Case, : in the as follows Blong suрra, 243) is stated (p. ex- matter of a trial court new trial for “The granting This an exercise of discretion. cessive involves damages unless there disturb such a determination should not in Hale v. of As out has been abuse discretion. pointed 285, 286, N. ‘The Schultz 223 Wis. 270 W. (1936), dam- on the of whether of judgment ages judge question considerable are excessive or not must be accorded matter is to this court. Pie influence when the presented ” has seen witnesses and heard the testimоny.’ the in of with that rule mind leads us Our review the record to that there has been no clear abuse the the conсlusion the trial court. Because of our deci- discretion exercised by affirm the of the trial court we have not at- sion to action recite in detail all of the evidence the to on tempted bearing injuries. of thе for We question plaintiff’s damages personal to in there is to do not deem it desirable do so cases whеre be a new trial. the Court.—Order
By affirmed. took no C. J., part. Martin, In the (dissenting). my jury’s opinion Fairchild, J. is sustained the evidencе answer to damage question in is viewed most favorable to Mrs. if the testimony light claim. Where this is the case the trial court Boughton’s it not set aside the answer unless is of the that opinion may action is the interest of In such case justice. such required be set in the must forth order. the reasons can if the be said not damage finding properly Even evidеnce, I would been sustained prefer have *5 option given would be for Mrs. not the lowest assess, amount that a an jury would but probably amount fixed as a fair and reasonable award under the evidence. for this were My reasons view stated filed in opinion Gennrich v. Schrank 6 Wis. (1959), (2d) 93 N. W. (2d)
Luczyk, Shaw, Respondent, Appellant. 26, 1959.
June 2 June