Moritz v. Allied American Mutual Fire Insurance

133 N.W.2d 235, 27 Wis. 2d 13, 1965 Wisc. LEXIS 879
CourtWisconsin Supreme Court
DecidedMarch 2, 1965
StatusPublished
Cited by35 cases

This text of 133 N.W.2d 235 (Moritz v. Allied American Mutual Fire Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moritz v. Allied American Mutual Fire Insurance, 133 N.W.2d 235, 27 Wis. 2d 13, 1965 Wisc. LEXIS 879 (Wis. 1965).

Opinions

[18]*18Wilkie, J.

There are four issues presented on this appeal:

1. Did the trial court err in failing to find that appellant was negligent in operating her vehicle as a matter of law ?

2. Did the trial court err in submitting an ultimate-fact verdict rather than a detailed verdict ?

3. Did the trial court err in holding excessive the jury’s $6,500 damage award for personal injuries, and in reducing that award to $3,500 under the Powers rule ?

4. Did the trial court err in striking the damage award of $1,500 for nursing and domestic services ?

Mrs. Moritz’s Negligence.

The case was submitted to the jury on an ultimate-fact rather than a detailed form of special verdict as respondents desired. The trial court found, as a matter of law, that Erickson had operated his vehicle in a negligent manner prior to the accident. The trial court refused to find Mrs. Moritz negligent as a matter of law. Respondents contend that the court erred in failing to find appellant negligent as a matter of law in regard to lookout and turning. In Zeitlow v. Western Casualty & Surety Co.1 this court rejected a claim that the trial court erred in not finding the plaintiff negligent as a matter of law, by saying:

“We do not agree with appellants that error was thus committed but, if there was, the error would be harmless, for the jury answered the question as appellants wished the court to answer it. And if the court had answered as appellants requested, the jury would still have to make the comparison of causal negligence between the parties.”

In the present case, it could not be said, after viewing the evidence as a whole, that Mrs. Moritz was negligent in any respect as a matter of law. However, it is not necessary to [19]*19discuss the facts in detail because even if she was negligent, respondents were not harmed by the trial court’s failure to so find since the jury ultimately found her 20 percent causally negligent.

Use of Ultimate-Fact Verdict.

Respondents maintain that they were prejudiced by the finding of negligence on Erickson’s part since the jury was unduly influenced by this determination when apportioning negligence between the parties. It is true, as the court recognized in Niedbalski v. Cuchna that:

“. . . because of respect for the trial judge’s experience and knowledge of the law, and confidence in his impartiality, a jury may give more weight to a finding made by the judge than to a similar finding which it makes for itself. It is possible for the same reason that when it reaches the comparison question, it may give disproportionally greater importance to negligence found by the judge than to negligence found by the jury. We suppose there might be cases where on review it so clearly appears from the circumstances that this must have happened, that" a'new trial should be had in the interest of justice.” 2

But the court continued:

“We decline, however, to adopt a rule based on a premise that a jury attributes disproportionate importance to negligence found by the judge in all, or a substantial number of the cases in which findings are made as a matter of law.” 3

That Erickson was found to be 80 percent negligent does not of itself establish that the jury was swayed. It is not at all surprising that the one who runs into the rear of another automobile is found to be much more at fault than the other driver. To conclude that a jury has placed improper [20]*20weight on a finding by the trial court, it must appear from all the facts, and the record taken as a whole, that such influence could be the only explanation for the negligence apportionment. There is nothing in the present case to indicate that the finding had any effect on the jury whatsoever.

It is true that the jury was not instructed with respect to the comparison question “cautioning the jury not to give greater or lesser importance or weight to the finding of the court that a party was negligent than to a similar finding made by the jury.” 4 But respondents did not request such an instruction and thus cannot complain about the failure to give it.

Respondents assert that when one party is found negligent as a matter of law while the other is not, the negligent party is prejudiced unless the case is submitted to the jury on the detailed form of special verdict. Respondents contend that otherwise the jury could be led to believe that the party is necessarily negligent in all respects — i.e., lookout, speed, management and control, etc., while in fact there is no negligence in regard to each, and that this thus influences their negligence comparison. No authority is cited to support this proposition. If this contention is correct, the use of the omnibus form of verdict will be greatly restricted.

Although the trial court found Erickson negligent as a matter of law it clearly limited that finding to Erickson’s speed and further instructed the jury on other aspects of Erickson’s possible negligence, namely, lookout, management and control. Under these circumstances, respondents were not prejudiced by the ultimate-fact form of special verdict.

Recovery for Personal Injuries.

The jury awarded Mrs. Moritz $6,500 for her personal injuries. The trial judge, after ruling out the possibility [21]*21of any error occurring on the trial and any passion or prejudice on the part of the jury, decided that the award was “excessive.” He gave no reasons or explanation for this conclusion. Pursuant to Powers v. Allstate Ins. Co.5 he found that $3,500 was “fair and reasonable” compensation for her injuries.

This is another instance similar to those in which we have been asked very recently 6 to review (1) a trial court’s determination that a jury award for personal injuries is excessive, but not caused by passion, or prejudice, and is not the result of error occurring during the trial, and (2) the sum fixed as reasonable by the trial court under Powers allowing the plaintiff an option of a new trial which he can avoid by remitting the excess above the amount which the court considers reasonable and taking judgment based on that reduced amount.7

The crucial question to be first resolved is whether the trial court here erred in finding that the $6,500 award for plaintiff’s personal injuries was excessive. Several criteria have been established to guide a trial court’s review of a jury verdict.

1. “The problem of achieving fairness in assessing damages for personal injury is fraught with difficulty. Theoretical nicety is impossible. Under our judicial system, we rely primarily upon the good sense of jurors to determine the amount of money which will compensate an individual [22]*22for whatever loss of well-being he has suffered as a result of injury.” 8

2. “In actions sounding in damages merely, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere.” 9

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

Related

Fahrenberg v. Tengel
291 N.W.2d 516 (Wisconsin Supreme Court, 1980)
Koele v. Radue
260 N.W.2d 766 (Wisconsin Supreme Court, 1978)
Cords v. Anderson
259 N.W.2d 672 (Wisconsin Supreme Court, 1977)
Grassl v. Nelson
248 N.W.2d 403 (Wisconsin Supreme Court, 1977)
Lutz v. Shelby Mutual Insurance
235 N.W.2d 426 (Wisconsin Supreme Court, 1975)
Redepenning v. Dore
201 N.W.2d 580 (Wisconsin Supreme Court, 1972)
Tills v. Elmbrook Memorial Hospital, Inc.
180 N.W.2d 699 (Wisconsin Supreme Court, 1970)
Schramski v. Hanson
173 N.W.2d 655 (Wisconsin Supreme Court, 1970)
Breunig v. American Family Insurance
173 N.W.2d 619 (Wisconsin Supreme Court, 1970)
Slattery v. Lofy
172 N.W.2d 341 (Wisconsin Supreme Court, 1969)
Hillstead v. Smith
171 N.W.2d 315 (Wisconsin Supreme Court, 1969)
McCraw v. Witynski
168 N.W.2d 537 (Wisconsin Supreme Court, 1969)
Hoeft v. Milwaukee & Suburban Transport Corp.
168 N.W.2d 134 (Wisconsin Supreme Court, 1969)
Page v. American Family Mutual Insurance
168 N.W.2d 65 (Wisconsin Supreme Court, 1969)
Schmiedeck v. Gerard
166 N.W.2d 136 (Wisconsin Supreme Court, 1969)
Jones v. Fisher
166 N.W.2d 175 (Wisconsin Supreme Court, 1969)
Lautenschlager v. Hamburg
165 N.W.2d 129 (Wisconsin Supreme Court, 1969)
Moose v. Milwaukee Mutual Insurance
163 N.W.2d 183 (Wisconsin Supreme Court, 1968)
Neider v. Spoehr
159 N.W.2d 587 (Wisconsin Supreme Court, 1968)
Crowder v. Milwaukee & Suburban Transport Corp.
159 N.W.2d 723 (Wisconsin Supreme Court, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
133 N.W.2d 235, 27 Wis. 2d 13, 1965 Wisc. LEXIS 879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moritz-v-allied-american-mutual-fire-insurance-wis-1965.