Summary
In Asplund v. Palmer (1950), 258 Wis. 34, 44 N.W.2d 624, the trial court reduced punitive damages from $5,000 to $4,000, which was affirmed because no motion to review the ruling was made.
Summary of this case from Malco v. Midwest Aluminum SalesOpinion
October 6, 1950 —
November 8, 1950.
APPEAL from a judgment of the circuit court for Rock county: ARTHUR W. KOPP, Circuit Judge, Presiding. Reversed.
For the appellant there were briefs by Chester J. Niebler, and oral argument by Mr. Niebler and Mr. John A. Udovc, both of Milwaukee.
For the respondent there was a brief by Fisher Fisher of Janesville, and oral argument by Cleland P. Fisher.
Action by Bernice Asplund, by guardian ad litem, against Robert W. Palmer for damages for assault and battery committed upon plaintiff February 15, 1947. Judgment in plaintiff's favor. Defendant appeals.
The action was commenced by delivering the summons and complaint to the sheriff of Rock county February 12, 1949. The completed service was on February 15, 1949, by the sheriff of Washington county, the summons and complaint having been forwarded to the sheriff of Washington county by the sheriff of Rock county.
It was set forth in the complaint that the plaintiff is an infant under the age of twenty-one years and that a guardian had been appointed; and it was there alleged that the defendant "on the evening of February 15, 1947, at the said county of Rock, with great force and arms made an assault upon the plaintiff, throwing her to the ground with great violence; tore the plaintiff's clothes from her person; beat and bruised and ill-treated the plaintiff, putting her in great fear of her life and body." There are allegations describing the damage resulting from said assault. The plaintiff demanded judgment in the amount of $10,000. A demurrer to the complaint was sustained with leave to plead over. An amended complaint was served April 29, 1949. In the amended complaint the time and place of the assault were more particularly described and the judgment sought was for $10,000 compensatory damages and $5,000 punitive damages. To the amended complaint the defendant interposed a plea in abatement and asked dismissal of the action because "more than two years have expired since the alleged assault and the commencement of the action herein by service of the amended complaint; that no notice of injury as required by sec. 330.19 (5) of the Wisconsin statutes of 1947 was ever served on the defendant or his attorney." the answer also contained denials of other important allegations in the amended complaint. The action was tried in February, 1950. A special verdict returned by the jury awarded plaintiff $6,000 compensatory damages and $5,000 punitive damages. On motions after verdict the trial court reduced the compensatory damages to $5,000 and the punitory damages to $4,000, giving the plaintiff the option of accepting reduced damages or submitting to a new trial of the case. Plaintiff signified her acceptance of the reduced damages, whereupon judgment was entered in her favor April 8, 1950.
In proceeding with this action, the impression apparently prevailed that the cause must be brought in accordance with the provisions of sec. 330.19 (5), Stats., the defendant insisting that if the notice required by that section was essential to this case, it was not given in due season. The defendant urges that where damages are excessive the rule, permitting the acceptance by the party in whose favor the verdict is of an amount properly reduced in lieu of a new trial, was not followed in this case.
The facts on which plaintiff relies for recovery in this case were brought before the court in the case of Palmer v. State, 253 Wis. 428, 34 N.W.2d 110. The judgment in that case was reversed and the cause remanded with directions to grant a new trial. The errors treated with there were largely due to procedural difficulties which were briefly reviewed in the opinion filed in that case.
The case now before us is one in which plaintiff seeks both damages for injury to her and exemplary damages. The contention by the defendant that the service of a summons and complaint on February 15, 1949, is not within the two-year limitation of sec. 330.21 (2), Stats., would be of some service to him but for the fact that the plaintiff is an infant, and the disability of infancy still exists.
Sec. 330.33, Stats., reads:
" Persons under disability. (1) If a person entitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof be, at the time the cause of action accrued, either
"(a) Within the age of twenty-one years; . . .
"(2) The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases."
It may also be said that the suggestion that the complaint' which was demurred to would serve as a notice does not need to be treated with at any great length, because action which must be begun within the limits fixed by the statutes of limitations relating to actions for assault and battery does not require the giving of a notice. Drinkwater v. Andrews, 126 Wis. 241, 105 N.W. 575. The statute requiring the giving of notice was enacted for the purpose of protecting those who may be liable in a certain class of actions where the limitation is six years. In Manas v. Hammond, 216 Wis. 285, 288, 257 N.W. 139, we said: ". . . the purpose of the notice requirement [is] to afford one charged with responsibility for an injury an opportunity to investigate the circumstances and preserve evidence for his defense before they are defeated by the intervention of time."
The controlling questions to be determined upon this appeal relate to the ruling of the trial court upon the motions after verdict in reducing the damages. The trial court was of the opinion that the damages allowed by the jury were high, but in view of the testimony he did not consider that the allowances were of such an amount as to warrant granting a new trial because of passion or prejudice. The jury in assessing exemplary damages fixed the amount at $5,000. Under the circumstances of this case it is considered that the assessment by the jury of the punitive damages upon defendant might reasonably be accepted as a proper expression of opinion in condemnation of acts of this character, and that the jury was within its province in fixing that amount. While the allowance of exemplary damages has been a much debated question, it is settled in this state that in actions for personal torts "a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff. . . . This has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case." Robinson v. Superior Transit R. Co. 94 Wis. 345, 348, 68 N.W. 961; Marlatt v. Western Union Tel. Co. 167 Wis. 176, 167 N.W. 263. While the jury are not at liberty to award any amount, regardless of how large it may be, and their verdict in some instances may be subject to review by the court, it is considered that in this case there was no occasion to disturb the finding of the jury, because the amount is not so large as to satisfy the trial court or this court that it was not the result of an honest exercise of judgment. 3 Am. Jur., Appeal and Error, p. 454, sec. 893; 15 Am. Jur., Damages, p. 806, sec. 367; 5 C.J.S., Appeal and Error, p. 646, sec. 1651; 25 C.J.S., Damages, p. 737, sec. 126. See cases cited. As the defendant has benefited by the reduction which the trial court made, and as there is no motion by plaintiff to review the ruling, we do not consider the matter further. It must be affirmed.
As far as the compensatory damages are concerned, there must be shown by the evidence a direct relation between the amount allowed and the damages proven. Upon a consideration of the testimony, we are of the opinion that the trial court could in his discretion reduce that amount, giving to the plaintiff the option provided for by the established ruling. We agree that that amount was subject to review. The determination by the trial court to reduce the amount of compensatory damages should have followed the accepted rule, which requires fixing the lowest amount which a jury properly instructed would reasonably fix as the damages. It is the established law of this state that where damages found by a jury are excessive, the trial court may grant a new trial unless the plaintiff exercises the option given him by the court to remit the excess and consents to take judgment the least amount that an unprejudiced jury, properly instructed, would under the evidence probably assess. Reykdal v. Miller, 216 Wis. 561, 257 N.W. 604. We are of the opinion that the amount to be accepted as compensatory damages, fixed by the court at $5,000, should have been as low as $2,000, that being the lowest amount a jury would probably assess, giving due credit to the claims of distress and humiliation and pain of the plaintiff. Therefore the plaintiff is to have the option of taking judgment for the punitive damages fixed by the trial court at $4,000, and for $2,000, determined by this court as and for compensatory damages, this being the lowest amount which a jury properly instructed might decide upon. Risch v. Lawhead, 211 Wis. 270, 248 N.W. 127; Tollander v. Bonneville, 240 Wis. 500, 3 N.W.2d 679.
The judgment of the circuit court is therefore reversed as far as it affects compensatory damages, and the case is remanded for a new trial unless plaintiff, within twenty days after filing of the remittitur in the court below, serves upon defendant's counsel consent in writing to acceptance of judgment in her favor for the sums here determined upon. Judgment may be rendered upon application to the court having jurisdiction of the action.
By the Court. — It is so ordered. Defendant to have costs on this appeal. The defendant in his costs to tax the expense of printing not only the brief and appendix but the reply brief made necessary by the inaccuracy in the plaintiff's brief.