230 Wis. 604 | Wis. | 1939
The plaintiffs sue the defendant Muth and his indemnity insurer to recover for their injuries received while riding in an automobile driven by plaintiff Ervie Mc-Cartie in a collision with an automobile driven by the defendant Muth, alleged to have been caused by the negligence of Muth. The automobiles were proceeding in opposite directions on a highway. Both drivers were found guilty of causative negligence, Muth as to lookout, control, and being-offside; McCartie as to lookout; Muth seventy per cent and McCartie thirty per cent. Ervie McCartie was awarded judgment on the verdict for seventy per cent of his damages awarded by the jury, each of the others for the full amount awarded.
The appellants claim that, (1) the court erred in not dismissing the complaints because the evidence does not support
(1) This appears to us to be the ordinary automobile collision case wherein the witnesses on one side testify tO' one state of facts and those on the other side to another in which case a jury may believe whichever set appears to them to- be more credible. But for assignments of error (2) and (3) we would affirm the case without opinion under Rule 64.
(2) (a) The jury assessed the damages of Ervie McCartie at $300 for pain and suffering and $35 for loss of wages. Complaint is only made of these assessments, those for injuries to his automobile and for expense of attendance upon his wife and daughter being uncontested.
The plaintiff was kept from his work just one week, and his wage loss was just $35. His physical injuries were trivial. We consider that $50 is as much as a jury might properly award for them. The judgment is modified by reducing it by seventy per cent of $250 and affirmed as modified, unless the defendants, within ten days from the filing of the remanded record, file their election in writing tO' take a new trial on the question of damages only, in which event the court shall so order.
(2) (b) The plaintiff Anna McCartie was awarded damages of $665. We consider this as well within the province of the jury to award. She sustained a broken arm, and neurasthenia resulted from the injury which caused her nervousness and great pain from which she was still suffering at the time of trial three and a half months after the injury occurred. Her judgment is affirmed.
(3 ) The jury awarded to the daughter Doloris, eight years old, $5,000. She sustained a broken arm and a broken nose. The arm is now normal, and recovery followed without any unusual incidents. The bridge of the nose is flattened, leav
“The application of the defendant, made after the verdict, for leave to amend his answer, by increasing the sum for*608 which judgment was demanded against the plaintiff upon his counterclaim, from $248.50 to $365, the amount found by the jury, should have been denied; or if allowed, it should have been upon the condition that the defendant would relinquish the verdict, pay the plaintiff’s costs of the trial, and submit to a new trial. This was the rule before the code, and the reasons for it still exist. They are that such amendment without these conditions, would be improper, because the opposite party would have no opportunity of reducing the damages, which on the trial he had no occasion to do by reason of the moderate amount claimed against him. 4 Wend. 362; 7 id. 330; 2 Seld. 105. These reasons apply as well to the amount of the judgment demanded upon a counterclaim as to1 that claimed by the plaintiff in his complaint; for, as to such counterclaim, the defendant becomes in reality the complaining party, and is bound to state the amount of his damages as much as if he were plaintiff.”
The rule of the Pierce Case seems never to have been changed by any decision of this court. It was followed, in effect, although not cited, in Berger v. Abel & Bach Co, 141 Wis. 321, 328, 124 N. W. 410, wherein a notice of injury required by statute to be served as condition precedent to a personal-injury action, had named $5,000' as the amount of damages claimed. A month later action was commenced and $7,200 demanded as recoverable. The jury returned a verdict of $6,502. This court was of opinion that the damages assessed by the jury were excessive, and reduced the judgment to the amount of $5,000 as claimed in the notice of injury. The rule of the Pierce Case, supra, was considered by Judge Quarles in Manitowoc Malting Co. v. Fuechtwanger (C. C.), 169 Fed. 983, 985. The suit was on a contract. It appears that the evidence showed that if the plaintiff was entitled to recover it was entitled to- recover at a stated sum per bushel of malt. The ad damnum clause was for $10,000. The jury returned a verdict of $21,000, which was correct at the stated rate per bushel if the plaintiff was entitled to recover. The jury had come in after the case had
“The court may upon the trial or at any other stage of the action, before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding ... by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”
This statute or any other was not mentioned in the Pierce Case, supra.
Whether in a case of contract where the damages are liquidated and the jury has assessed the damages in excess of the amount demanded, the granting of a motion to amend the ad damnum clause must be conditioned on granting a new trial, we need not here determine. But we consider that in a case where the damages are unliquidated, as here, the granting of the amendment should be denied except on condition of a new trial, at least on the question of damages. Where, as here, the ad damnum clause is as high as a jury might
By the Court. — Mandates are entered in accordance with the opinion.