Donovan v. Northwestern School for Stammerers

162 N.W. 178, 165 Wis. 331, 1917 Wisc. LEXIS 93

• Court: Wisconsin Supreme Court
• Decided: April 4, 1917
• Status: Published

Opinion

Kerwin, J.

It appears from the verdict and undisputed evidence that the defendant guaranteed to cure the plaintiff of stammering within five weeks or return the tuition fee,. $65; that the plaintiff diligently co-operated with defendant during that time and the defendant failed to effect a cure. After the expiration of five weeks the plaintiff continued the treatment at the request of the defendant for at least a month, and became satisfied that no cure would be effected, and left. The contention of the appellant here is that he should have-had judgment upon the verdict, and that the amount allowed by the jury was less than what should have been allowed him, the theory being that he was entitled to pay for his time in addition to the $65 tuition fee guaranteed to be returned in case of failure to cure.

We are convinced from the whole record that there is no-basis for any damages beyond the amount of the tuition fee, $65, and that the civil court should have granted judgment for that amount.

On appeal to the circuit court a new trial should be ordered' only in cases where substantial justice cannot otherwise be done and the rights of the parties otherwise protected. In the instant- case upon the undisputed evidence it was the duty of the circuit court to modify the judgment of the civil court and order judgment for the sum of $65' and costs, and the-circuit court was in error in ordering a new trial. Eder v. Grifka, 149 Wis. 606, 136 N. W. 154.

By the Court. — The order of the circuit court is reversed, and the cause remanded with directions to the circuit court to modify the judgment of the civil court by reducing the amount of damages to $65 and costs.