Dostal Ex Rel. Schmidt v. Millers National Insurance

404 N.W.2d 90, 137 Wis. 2d 242, 1987 Wisc. App. LEXIS 3423
CourtCourt of Appeals of Wisconsin
DecidedFebruary 12, 1987
Docket85-1548
StatusPublished
Cited by5 cases

This text of 404 N.W.2d 90 (Dostal Ex Rel. Schmidt v. Millers National Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dostal Ex Rel. Schmidt v. Millers National Insurance, 404 N.W.2d 90, 137 Wis. 2d 242, 1987 Wisc. App. LEXIS 3423 (Wis. Ct. App. 1987).

Opinions

EICH, J.

The appeal and cross-appeal in this twice-tried dogbite case present several issues relating to the award of . treble damages under sec. 174.04, Stats. (1979-80), and the propriety of various rulings by the trial court.

Michael Dostal, a minor, was bitten by a dog owned by Hubert Monroe. Michael and his parents, Carl and Jane Dostal, sued Monroe1 and his insurer, Millers National Insurance Company, for damages. Monroe counterclaimed against Carl Dostal and his insurer, Heritage Mutual Insurance Company, for contribution, alleging that Dostal was contributorily negligent in caring for and supervising Michael on the day in question. The case went to trial and Monroe was found causally negligent in the manner in which he kept and controlled the dog. Carl Dostal was also found negligent with respect to the incident, and the jury apportioned sixty percent of the total negligence to Monroe and forty percent to Carl Dostal. The jury found that Monroe was on notice that the dog had previously injured another child, thus triggering the treble damage provisions of sec. 174.04, Stats. (1979-80). In addition to medical expenses, which were stipulated by the parties, the jury awarded Michael [247]*247$6,800 for past, and $8,500 for future, pain and suffering.

In motions after verdict, the trial court concluded that the jury’s damage award for Michael’s past and future pain and suffering was perverse and ordered a new trial on those issues. At the second trial, the jury awarded Michael a total of $20,000 for past and future pain and suffering and an additional $5,150 for future medical expenses. After verdict, the trial court struck the award for future medical expenses and trebled the $20,000 award for pain and suffering, granting Monroe contribution from Carl Dostal and Heritage for $8,000.

Monroe and Millers appeal, arguing that: (1) treble damages are not recoverable under sec. 174.04, Stats. (1979-80), in the absence of the owner’s knowledge that the dog had previously "mischievously harmed” someone; (2) treble damages may not be awarded on the portion of Michael’s damages not attributable to the owner of the dog; (3) the damage verdict at the first trial was not perverse, and the court erred in ordering the new trial on damages; (4) even though the trial court ultimately overturned the award for future medical expense after the second trial, the mere fact that the issue was before the jury improperly influenced the verdict on Michael’s pain and suffering; and (5) Michael’s counsel’s invocation of the "golden rule” argument in his closing remarks to the jury entitles Monroe to a new trial. The issue on the Dostals’ cross-appeal is whether the trial court abused its discretion in striking the award of future medical expenses from the second verdict.

We conclude that the trial court incorrectly computed the enhanced damages and reverse on that issue. In all other respects, we affirm the judgment.

[248]*248The basic facts are not in dispute. Michael Dostal accompanied his father, Carl, to Monroe’s place of business where Carl sought to purchase a tractor part. Monroe and Dostal went to inspect the tractor from which the needed part was to be taken, leaving Michael with the dog. Several minutes later, they heard Michael scream and turned to see him standing next to the dog, bleeding from bites to his face. There was considerable evidence as to the nature and severity of Michael’s injuries and his need for future medical treatment, and Monroe conceded that the dog had bitten another young boy on an earlier occasion.

I. TREBLE DAMAGES

(a) The Need to Prove the Owner’s Knowledge of the Dog’s Prior "'Mischievous” Acts

At the time of Michael’s injury, the applicable treble damage statute was sec. 174.04, Stats. (1979-80), which provided: "Any person suffering personal injury by any dog ... may give notice to the owner or keeper of the act done, and if after such notice such dog shall injure any person ... the owner or keeper shall be liable to pay to the person injured thereby treble damages.”

. Monroe argues that treble damages are, to a degree, punitive in nature and therefore should not come into play unless the dog has previously injured someone "mischievously” or "without provocation.” Because the jury at the first trial found that he was not negligent in keeping a mischievous dog,2 Monroe [249]*249argues that he should not be penalized by being ordered to pay treble damages. We reject this argument.

The dog owner’s liability for treble damages arises from sec. 174.04, Stats. (1979-80); the statute requires only that the injured party prove the owner’s knowledge that the dog had injured someone on a prior occasion.

[N]o particular state of mind or outrageous character of the conduct is necessary at all. For the purpose of awarding treble damages under sec. 174.04, Stats., all that is necessary is that it be shown that the dog had previously injured someone under the statutorily defined circumstances and that the owner had notice of the previous injury. Whether the dog is known to be violent and vicious, so that the owner’s conduct in not restraining the dog is extreme recklessness, or whether the dog is normally gentle, but has had one prior incident, makes no difference for the purpose of the statute. Treble damages are awarded in either case. Cieslewicz v. Mutual Service Cas. Ins. Co., 84 Wis. 2d 91, 102, 267 N.W.2d 595, 600 (1978).

(b) The Amount to be Trebled

As indicated, the jury found that both Carl Dostal and Monroe were causally negligent, apportioning sixty percent of the total negligence to Monroe and forty percent to Dostal. The trial court trebled the $20,000 unapportioned damage award, ruling that because Michael’s claim was against Monroe alone, and Monroe’s counterclaim for contribution from Carl Dostal was "entirely independent of the underlying transaction,” Michael was entitled to the trebled $60,000 judgment against Monroe. The court then [250]*250granted contribution against Dostal for forty percent of $20,000, or $8,000.

Sprague v. Sprague, 132 Wis. 2d 68, 389 N.W.2d 823 (Ct. App. 1986), dealt with a similar situation arising under the 1981 double damage statute, sec. 174.02(l)(b), Stats. (1981-82), which is similar in its language to sec. 174.04, Stats. (1979-80). In Sprague, the mother of the injured child sued both the dog owner and the child’s grandmother, who was supervising the child on the day he was bitten. The jury found both defendants equally (fifty percent) negligent and, in entering judgment, the trial court first doubled the gross award and then subtracted the amount attributable to the grandmother’s negligence. Id. at 70-71, 389 N.W.2d at 823. Section 174.02(1)(b), Stats. (1981-82), like sec. 174.04, Stats. (1979-80), is silent as to whether damages are to be increased by the statutory multiplier before or after consideration of the allowance for the joint tortfeasor’s negligence.

We recognized in Sprague that the purpose of the multiple damage provisions of ch.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Halderson v. N. States Power Co.
2018 WI App 54 (Court of Appeals of Wisconsin, 2018)
Douglas-Hanson Co., Inc. v. BF Goodrich Co.
598 N.W.2d 262 (Court of Appeals of Wisconsin, 1999)
Martz v. Trecker
535 N.W.2d 57 (Court of Appeals of Wisconsin, 1995)
Dostal Ex Rel. Schmidt v. Millers National Insurance
404 N.W.2d 90 (Court of Appeals of Wisconsin, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
404 N.W.2d 90, 137 Wis. 2d 242, 1987 Wisc. App. LEXIS 3423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dostal-ex-rel-schmidt-v-millers-national-insurance-wisctapp-1987.