*1 City Capital Zelof, Appellant, Transfer, Inc., Respondent. 4, 1966. 1, 1965 January

December *3 appellant Boyle, For the there Ted C. were briefs attorney, Rynders counsel, and Richard R. both Madison, argument by Boyle. and oral Mr. respondent argu-

For the there awas brief and oral ment Richard E. Gordon of Madison. justification J. The trial court with some

Hallows, relied on McCartie v. Muth

N. W. which stated “we consider that in a case unliquidated, here, granting where the are except of the amendment should be denied on condition trial, question damages.” of a new at least on the Case, The McCartie which involved an ad damnum clause $4,000 $5,000, and a verdict of relied on Pierce v. Northey (1861), (*9). 10Wis. The Pierce Case clearly held that leave to amend the ad damnum clause to increase it to the amount of the verdict should have moving party relinquishes the condition the pays verdict, party’s the other costs of trial and submits to a new trial. The court stated this was a rule before the code and the exists, namely, reason it still opposite party opportunity reducing had no the dam- ages which on the trial he had no occasion to do because *4 against the moderate amount claimed him. In that complaint case the demand in the was $248.50 verdict $365. given light

The reason for the rule should be read in money of the amount of involved and neither the Pierce represent nor the McCartie Cases should under modern practice a hard or fast or an inexorable rule. To that extent, language contrary to the is overruled. think We power the trial court judg- has the after trial and before grant ment just to on terms as an amendment of 388 to the the conform ad damnum so verdict will

the clause pleading. one, in problem this has a troublesome both

This been guided to an elsewhere, is answer and and one state of the depending emphasis put the function the on plaintiff an in common damnum clause. At law by in the his demand for was limited action complaint than the amount could recover no more and pleading specified. Amendment of after submission jury rarity. Beranek v. Beranek See of the case to a 146; (2d), (1902), 272, 22 Am. Jur. 113 89 N. Wis. W. gave Damages, 371, p. rise to view sec. 276. This right rely the ad damnum to that a defendant had making rely presumably did his defense. and clause recognized hardly its the code but The Pierce Case expense liberality at the amendment allowed right rely for relief trial. The to on the demand new complaint in a some the first sentence finds basis 270.57, Stats., provides in of default the cases sec. which granted that demanded.1 relief cannot exceed an answer is the rest 270.57 states where sec. put pleadings amended in and a contest made greater High grant Union Free to relief. Wauwatosa v. (1934), 35, 252 214 N. 351. School District Wis. W. required by 263.03 An ad damnum sec. Stats., requires a of the relief to which statement which 1 explained 481, v. Good 218 N. W. Schiltz “The for the rule has stated thus: ‘The reason and reason rule, equity statutory practically old of this fairness which submits, rule, The defendant his default without is obvious. plaintiff only court, part, contest on his claim greater prayed complaint. for the relief in the But if different or demanded, might appear unjust; contest it as relief were awarding power wisely the court in hence the statute limits complaint, to that asked default may safely appear omit to cases where he that defendant end willing court, contest, to the the claim of submit specific complaint.’ plaintiff relief his invoked in College, v.Co. Albert Lea Minn. Northern Trust W. 71 N. Jacobs, 9. W. 630.” See Whitehill N. *5 plaintiff supposes money and if relief is entitled demanded, has stated amount thereof. It damnum, ad de clause to limit the serves amount potential liability jury fendant’s maximum has authority no to award an amount in of the demand excess any after amendment affect a sub would right Phillips stantial the defendant. v. Rolston (1965), 264, (2d) 376 Mich. N. 158. Another 137 W. primary view is that function of the ad damnum jurisdictional key clause furnish the to the jurisdiction dependent upon courtroom where a court’s jurisdictional amounts. The ad damnum clause even getting be talismanic in into a federal court. The function of the ad damnum importance clause de also varies pending upon given jurisdiction whether or not jury opening be submitted to the either in the statements, arguments jury in the in or in the point struction. From one it is ad view claimed the problems damnum clause has created serious the law and has been abolished in several Ad states. See The Clause, Damnum Solution, monograph The Problem and (August, 1965), Institute, The Defense Eesearch Inc.

In Wisconsin the ad damnum clause as does have significance much as it has some It states. is not jury opening allowed be mentioned to the in the state- arguments jury. ments or in v. Milwaukee Affett Transport Corp. & Suburban 604, (2d) (2d) 106 N. W. Nor 274. can the court instruct it. In Otto v. Milwaukee Northern R. Co. 134 N. W. the trial court instructed the

jury plaintiff if the recover, was entitled to his should be fixed at fully compensate such a sum as to exceeding him but $5,000, the amount of damnum holding clause. In such an instruction was error, placed court stated: “The law no such limit guide jury. pleading for the placed The no such limit. True, prayer $5,000, govern but did not recovery. might amount of the have been if more *6 notwithstanding prayer. it warranted

the evidence all, especially a case Why in such refer the matter at to overestimating danger rea- present ever where the damages?” recoverable sonable v. Subsequent Pietsch to McCartie court decided this (2d) 302, 38 N. Groholski W. and counterclaim defendant had filed a wherein the personal injuries. The damages $25,000 demanded damages negligent jury plaintiff and assessed found the granted Judgment on the verdict. $26,170.50. was at to appear was made amend that a motion does not affirming appeal the court on the ad damnum clause. In jury in a it not error for award stated was prayed if was for and the verdict excess of the amount relationship injuries, to the and true not excessive bore a to in Case was not referred it should stand. The McCartie opinion. Schneuriger in Schwartz (2d) considered both 69 N. this court W. Pietsch to a com- McCartie and the Cases reference $25,000 damages plaint and to an which asked for award Judgment and $27,000. was entered on verdict appeal not on the verdict found to be excessive on judgment evidence, It does not was affirmed. appear damnum a made amend the ad motion was complaint. The court did not follow clause and at result McCartie Case arrived its basis 270.57, either of these Stats. We do contend sec. proposition a in excess of an for the verdict cases stands support ad damnum can and clause stand they pleadings an amendment to the but indicate of the damnum clause is neces- excess sarily lost for that reason. 269.44,3 270.57, Stats.,2 and hold under sec.

We sec. power judg- the court has the after verdict before granted plain The relief 270.5V “MEASURE of relief. tiff, answer, there no cannot exceed that which he shall have if any may complaint; in his other case the court demanded but justice upon ment in furtherance of terms as such just to allow an to increase the amendment amount of the ad damnum clause the amount of the pleadings judg- support verdict so the and verdict will ment of the amount awarded. just necessarily

What are depends terms facts case. When in fact defendant misled clause, amount of the ad damnum court well im- pose different terms than when defendant cannot prove he has been No rule of misled. mathematical disparity between the amount of the ad the verdict and damnum clause can be an amendment formulated. Where to the ad originally damnum if claimed have would *7 permitted the court, removal to the federal the motion has been held to deprived come too late it the because Cordrey Steamship of defendant his choice of forum. v. “Bee” (1921), 636, 102 Or. 201 addition Pac. 202. In supported by a when verdict and the evidence clause, ad excess of the damnum there a variance exists pleading proof. the between and the Such a variance 263.28, Stats.,4 under see. it is not deemed material unless party prejudice, misleads the its adverse and it must proved party be satisfaction of the court a that respect has been so misled and in he what has misled. been But party even when is misled court not the fore- allowing closed may from an amendment order the but grant any complaint him relief consistent with the case made the and embraced within the issue.” op proceed pleadings 269.44 “Amendments processes, and ings. any stage may, any special pro at The court of action or ceeding judgment, justice before or after in furtherance of and may upon just, any process, pleading such terms as be amend or proceeding, . .” . materiality. (1) 263.28 “Variances, No variance between allegation pleading proof in a shall be deemed material party prejudice. unless it misleads the adverse to his Whenever proved party it be shall to the satisfaction of the court that a has misled, respect misled, so and in what been may has court pleading upon just.” order the amended such terms as be just. We

pleading as such terms amended apply quoted why should see reason the statutes no they complaint damnum clause full force to aspects pleadings. do to other of a defendant presumption In there is a some states regulated reference his conduct at the trial with might have of claim for the stated amount larger claim been had modified his course of defense (1895), 59 Electric Excelsior Co. Sweet asserted. pleading 441, our statutes N. J. L. 31 Atl. under 721. But v. Clintonville in Clute we think correct rule is stated Mut. 129 N. W. Fire Ins. Co. showing any of it “In the when said: absence disadvantage placed any the defendants were misled or at complaint in reference reason of averments damage sustained, to the amount of it was within permit court to the amend- sound discretion the trial ment.” allowing liberality pleadings,

The amendments of point course, proceeds, diminishes as trial but no must decided in reference to the facts of return originally each case. The trial court allowed amend ment the ad damnum ordered stating opinion the defendant his surprised by had least the verdict. This some basis at transpired pretrial at a what conference. Unfor *8 tunately no record was made this conference. To proper function, fulfil its a record should be made of a pretrial any agreement if conference there is made. 269.65, Casualty Stats. Schneck v. Mutual Service Sec. (1963), 566, 572, (2d) (2d) Co. 18 119 N. Wis. W. However, if this conference was. in the nature of 342. hearing, pre conciliation which is sometimes miscalled a conference, trial it is understandable that no record any event, made. In we cannot notice take of what might argument place took what said oral or

393 However, the the briefs because it is not in record. may recognize finding trial court we the of the although surprised the defendant was not we cannot apparent for it. from the review also basis proved record the defendant had to the satisfaction damnum, of the court that it ad was misled clause. On this basis the trial we think court was correct its allowing first determination in the amendment granting ad damnum condition of Consequently, granting new trial. trial the order a new granting should reversed and the order the motion amend the ad damnum clause and for on the verdict reinstated. argues appeal the defendant dam this

ages therefore, and, are excessive is entitled to a new ground. appeal trial on that While no cross or notice filed, of review was is entitled to raise defendant this question Stats., (2), sec. 274.12 it under because sustains appealed the order from. The verdict is no ex more cessive because it is three times amount of the ad inadequate damnum clause than it would be if it were one third of the amount the demand. The ad damnum sufficiency clause is not the test of the of the amount of plaintiff’s verdict. The damnum clause is the asking price, measuring not a stick. Whether or supported by the evidence we cannot decide transcript reporter’s because the notes is not in Consequently, the record. impossible it is for this court sufficiency to review the necessarily of the evidence and scope of our review confined to the record. Stelloh (2d) Liban (2d) Wis. 101; N. W. Fidelity Nichols v. United Guaranty States & Co. (2d) 491, (2d) 109 N. W. 131. On the record we cannot find the support verdict excessive. It had judge against the trial granted attack and the court pleadings. motion amend the *9 By directions order with Court. —The is reversed amending damnum clause the ad to reinstate the order granting judgment on the verdict. (dissenting). The ver- Currie, J., Gordon, J. C. complaint by almost dict exceeded demand percent. as matter of law this hold that We would grant a could not the court verdict one which offering option an to the defendant a new trial. that are defended less a realistic fact cases small large

vigorously that the trial than We believe cases. grant an amendment have the discretion court should complaint the verdict exceeds to a even verdict when after significant fraction —even a the ad damnum times the the verdict is three fraction. when post-verdict demand, impropriety amount of the apparent matter law. amendment should be necessary part a com- An ad damnum clause is a plaint a clause has under sec. 263.03 Stats. Such focusing purpose useful heretofore served the upon the of the defendant and his counsel attention exposure. approximate We fear that ma- area of jority’s defendants will view will mean hereafter effort, every all-out have to resist the trial case with larger vastly in a in which lest a be awarded case only demand had made. a small or modest