Opinion
April 10, 1942 —
May 5, 1942.
APPEALS from judgments of the circuit court for Burnett county: CHAS. A. TAYLOR, Circuit Judge. Affirmed.
For the appellant there was a brief by Arthur I. Ringham of Grantsburg and Doar Knowles of New Richmond, and oral argument by W. T. Doar.
For the respondents the cause was submitted on the brief of Clive J. Strang of Grantsburg and Nelton McGinnis of Balsam Lake.
Separate actions by Ruth Tollander and Edwin Tollander, respectively, plaintiffs, against Fred Bonneville, defendant, were commenced on December 30, 1939, to recover damages arising out of an automobile collision. The action was tried to the court and jury. The jury found defendant, Bonneville, and plaintiff, Ruth Tollander, the drivers of the cars, both negligent, and assessed defendant's negligence at sixty per cent of the total. The damages of plaintiff, Edwin Tollander, on account of personal injuries, were assessed at $50, on account of injuries to his wife and daughter, $100. The damages of plaintiff, Ruth Tollander, were assessed at nothing. The jury found that no personal injuries had been sustained by defendant, Bonneville. The trial court, upon motions after verdict, changed the jury's verdict in respect of the damages of plaintiffs. In respect of Ruth Tollander, the amount of the award was raised from nothing to $250 "unless the plaintiff shall, within fifteen days after date hereof, file a notice herein with the clerk of this court that the plaintiff elects to accept a new trial of the action upon the question of damages only." In respect of the damages to Edwin Tollander, the court raised the award of the jury as to this plaintiff's personal injuries from $50 to $500.50, and in respect of damages on account of injury to his wife and daughter from $100 to $242.35, and ordered judgment on the verdict as so amended with the same proviso that was attached to the change in the answer in the Ruth Tollander case.
From judgments entered November 3, 1941, in accordance with the order, defendant appeals.
There is no bill of exceptions in this case, and the sole question is whether the trial court had the power to increase the damages in favor of plaintiffs, without providing any option to the defendant.
The contention is that where a verdict has been found to be inadequate and the award raised to the lowest sum which a properly instructed jury would probably render, defendant should be given an option to take a new trial or to pay the increased sum, and that this is necessary to protect his right to a jury trial.
The case of Risch v. Lawhead, 211 Wis. 270, 248 N.W. 127, involved the precise question raised by defendant here, and the ruling was squarely contrary to defendant's contention. The whole matter was elaborately argued and considered there, and we are not disposed to depart from the conclusions reached.
By the Court. — Judgments affirmed.