229 Wis. 256 | Wis. | 1938
The action arose out of a collision on the highway of an automobile owned and driven by the plaintiff Wendt with one owned and driven by the defendant Fintch. The plaintiff Jolitz was a guest riding in Wendt’s car. Both Wendt and Jolitz were injured in the collision, and each sued Fintch and his insurer to recover for his injuries, alleging they were caused by negligence of Fintch. On the trial it was admitted that the injuries were so caused and that Wendt and Jolitz were free from negligence.
The only questions submitted to the jury were as to damages. The jury assessed the damages of Jolitz, for pain and
The attack upon the orders is made upon two grounds: (1) The rule that obtains in this state that when an assessment of damages is excessive and a motion for a new trial is made by the defendant on that ground, the court may give to the plaintiff the option to avoid a new trial by accepting the lowest amount that a jury might properly award on the evidence adduced upon the trial, is wrong and should be modified to permit a plaintiff to avoid a new trial by accepting such amounts as the trial court considers that the jury should have awarded. (2) The damages assessed by the jury are not excessive.
(1) The rule stated was established in Heimlich v. Tabor (1905), 123 Wis. 565, 102 N. W. 10. Although generally adhered to it was departed from in a few cases prior to the decision of Gerlach v. Gruett (1921), 175 Wis. 354, 185 N. W. 195, but was there reaffirmed and has been consistently adhered to ever since. The trial judge in the Gerlach
(2) Some of the assessments made by the jury in the instant cases were perhaps not excessive: But if they were not, the trial court did not rest its orders solely upon the ground of excessiveness. The order in the Jolitz case recites that the court “being convinced and satisfied that the awards made to the said plaintiff, Herman Jolitz, for pain and suffering and for loss of earnings and permanent injury are excessive and unreasonable and the evident result of passion
By the Court. — The orders of the county court are affirmed.