Opinion
March 8, 1961 —
April 4, 1961.
APPEAL from an order of the circuit court for Racine county: ELMER D. GOODLAND, Circuit Judge. Affirmed.
For the appellants there were briefs by Brach Wheeler, and oral argument by Fred W. Wheeler and by Roger W. Hoffman, all of Racine.
For the respondents there was a brief by Whaley Whaley of Racine, and oral argument by Vilas H. Whaley and John W. Whaley.
This is an action by Mary Dykstra and her husband for damages for personal injuries sustained by Mrs. Dykstra on March 12, 1957, as a result of a collision between an automobile operated by her and a delivery truck driven by Harold Moss, an employee of Cudahy Brothers Company.
The collision occurred on a road in a built-up residential area. Moss, southbound, was in the process of turning right into a parking area in front of a grocery store on the west side of the road. The road had a hard surface about 18 1/2 feet wide with no marked center line. In preparing to make the turn, Moss had swung somewhat to the left of the center of the roadway, but the extent of his deviation was in dispute. Mrs. Dykstra was also southbound behind the truck, driving 15 to 20 miles per hour. She testified that she thought the truck was stopped on the left side of the highway, and she intended to proceed south on her own side of the road. When she saw the truck moving toward her path, she attempted to avoid it by turning toward the parking lot, and she thought she stepped on the gas. The truck struck her car near the left rear corner, inflicting $50 worth of damage. Her car was spun about, and came to rest a few feet into the parking lot and facing east. Moss did not see Mrs. Dykstra before the collision, but attempted to stop when his fellow employee, riding in the truck, shouted a warning.
Mrs. Dykstra was twisted about in the car, and sustained bruises which she said did not bother her much, and went away. She had been pregnant for about three months, and had just been examined by Dr. Beatrice Jones who found her normal except for the pregnancy. After the accident, Mrs. Dykstra testified that "it seemed like everything had dropped." Dr. Jones found on later examination that Mrs. Dykstra had a cystocele (relaxation of the bladder so that the tissues come down into the external opening), a rectocele (relaxation of the tissues around the rectum), and a prolapsed uterus (relaxation of the womb). Dr. Jones prescribed treatment, and the child was born the following September, and was normal. The condition described continued, however, and in the spring of 1958 after further treatment, Dr. Jones advised surgery. Dr. Elizabeth Steffen performed surgery, and accomplished a satisfactory repair, and the mouth of the womb was amputated. Such amputation makes it difficult, and sometimes impossible, for a women successfully to carry a child through pregnancy. Mrs. Dykstra testified to various ways in which she was unable to work and enjoy life as fully as before.
Dr. Jones testified that the collision could have caused the condition which developed. Whether her opinion was that the collision probably did cause it is not clear. She did say that she could see no other cause. A specialist called by the defendant testified that the described condition is not unusual after a woman's third or fourth pregnancy (this was Mrs. Dykstra's fourth), and that there was no connection between the accident and the condition. Dr. Steffen was out of the city at the time of the trial.
The court found Moss negligent as a matter of law with respect to lookout and making a right turn. The jury found his negligence causal in both respects, and found Mrs. Dykstra not negligent with respect to passing on the right, and causally negligent with respect to sounding her horn. The jury attributed 80 per cent of the causal negligence to Moss, and 20 per cent to Mrs. Dykstra, and awarded $20,000 damages to Mrs. Dykstra for pain, suffering, and personal injuries, and $5,000 damages to Mr. Dykstra for loss of services and society. The amounts of medical and hospital expense and automobile damage were answered by the court.
On July 20, 1960, the court ordered a new trial in the interests of justice, and because the damages were excessive. The order stated that the reasons set forth in a decision already on file were incorporated by reference. Plaintiffs appealed.
Additional facts will be referred to in the opinion.
1. Form of order. "No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein."
Sec. 270.49 (2), Stats.
We have held that, "if the reasons for granting a new trial in the interest of justice are set forth in detail by the trial court in a memorandum opinion, the order itself will comply with the statute if it incorporates by reference such reasons stated in the memorandum opinion."
Cary v. Klabunde (1961), 12 Wis.2d 267, 270, 107 N.W.2d 142; Goldenberg v. Daane, ante, p. 98, 108 N.W.2d 187.
2. No abuse of discretion. The circuit court was of the opinion that Dr. Jones' testimony was not of sufficient probative value to sustain the jury's finding that Mrs. Dykstra's internal difficulties were caused by the collision. Judge GOODLAND considered it unfortunate that Dr. Steffen was not available to testify, and suggested that at a new trial she could assist the court and jury in arriving at a just determination of the controversy. Dr. Jones' testimony upon the matter of causation was somewhat ambiguous. Judge GOODLAND also stated that, assuming that her testimony was sufficient to justify the jury in awarding damages for all claimed injuries, the amount awarded to the Dykstras was "so excessive that it reflects passion and prejudice on the part of the jury in favor of the plaintiffs" and that the verdict is perverse.
With respect to a claim of defendants that the court erred in finding Moss negligent as a matter of law with respect to making a right turn, the court acknowledged that a change in the form of the applicable statute had gone into effect shortly after the accident so that the earlier form would control and reserved the right to decide on retrial whether the manner in which Moss made the right turn presented a jury question, or should be answered by the court as a matter of law.
"It is well settled in this state that a new trial granted in the interests of justice is a highly discretionary order, and that, while it is not beyond the power of this court to review it, nevertheless in order to reverse, it must clearly appear that there was an abuse of discretion."
Bolssen v. Heenan (1958), 3 Wis.2d 110, 116, 88 N.W.2d 32.
We cannot find an abuse of discretion here.
Plaintiffs contend that the court should have given them an option to accept a reasonable amount determined by the court as an alternative to a new trial. The rule permitting such an option, however, applies "where an excessive verdict is not due to perversity or prejudice, and is not the result of error occurring during the course of trial."
Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 91, 102 N.W.2d 393.
3. Request for review. Defendants request a review of the denial of their motion for a nonsuit. This motion, made at the close of plaintiffs' evidence in chief, did not go to the entire cause of action of either plaintiff, but only to the damages resulting from Mrs. Dykstra's internal difficulties. It is evidently conceded that plaintiffs had produced evidence sufficient to support findings which would result in liability of defendants for her bruises and for damage to the car. The record does not disclose that defendants subsequently made any motion, or any request for instructions which would renew their claim that plaintiffs had failed to prove any causal connection between the collision and the internal condition. It does show that both counsel approved the form of special verdict containing a question as to damages for Mr. Dykstra's loss of services and society of his wife, and a question answered by the court as to medical and hospital expenses. The sufficiency of plaintiffs' medical testimony on causation is a close question. There will be a new trial at which the question of damages can be fully litigated. Under the circumstances, we see no reason to require that the question of damages for the internal condition be excluded from the new trial.
By the Court. — Order affirmed.