Opinion
November 1, 1966. —
November 29, 1966.
APPEAL from a judgment of the circuit court for Wood county: HERBERT A. BUNDE, Circuit Judge. Reversed.
For the appellant there was a brief by Chambers, Nash, Pierce Podvin of Wisconsin Rapids, and oral argument by Dudley W. Pierce.
For the respondent the cause was submitted on the brief of H. G. Haight of Neillsville.
Only the question of whether the damages are excessive is presented on this appeal. It appears that on December 14, 1964, the plaintiff, Kenneth W. Tuttle, was a passenger in an automobile when it was struck from behind by a truck and semitrailer driven by a Charles B. Miller, insured by the defendant-appellant, Virginia Surety Company, Inc. The defendant has admitted liability, and the trial was directed solely to the question of damages. Tuttle alleged, and the evidence supported a finding, that for a period of approximately three weeks plaintiff suffered severe pains across the neck, right shoulder, and lower back, but that about the time when these pains subsided, he developed severe headaches that were constant from January, 1965, until August, 1965, and that, from that time on until the date of the trial in early 1966, the headaches were intermittent and were to some degree subsiding in intensity. It was stipulated that plaintiff's medical expenses totalled $237.50. There was no evidence of any permanent disability, and the court specifically directed the jury to allow nothing for future disability or for future pain and suffering.
The only question for the jury was to determine what sum of money would fairly and reasonably compensate the plaintiff for the pain and suffering he suffered to the date of trial. In addition to shoulder and back pains and severe headaches, the plaintiff proved that on occasions he was obliged to return home from work to lie down; and his wife testified that he no longer played with the baby, as he had done before, and that he had not shoveled any snow during the winter of 1965-1966.
The jury returned a verdict of $4,500, exclusive of the stipulated medical expenses. The plaintiff moved for a judgment on the verdict, and the defendant asked that the answer to the damage question "be changed from $4,500.00 to such sum as a reasonable and unprejudiced jury would find and that the plaintiff be granted the option to accept such lesser sum or submit to a new trial, on the grounds that the verdict for personal injuries was so high that it evidences passion and prejudice on the part of the jury." The defendant alternatively moved that the verdict be set aside and a new trial granted because of its excessiveness and in the interests of justice. The trial judge denied the defendant's motion. In his oral denial, the judge concluded that the verdict was high and higher than he would have found, but he stated:
". . . even though I think it is high . . . . I don't think it is excessively high to show passion or prejudice, however, and that is the only authority I have got to disturb a verdict."
We conclude that this matter must be remanded to the trial court for the application of the Powers rule. It is clear from the colloquy with defendant's counsel that the trial judge concluded that he lacked the authority to set aside a jury verdict unless the verdict was so high that it showed passion and prejudice. This, of course, is not the rule. We stated in Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 91, 102 N.W.2d 393:
". . . where an excessive verdict is not due to perversity or prejudice, and is not the result of error occurring during the course of trial, the plaintiff should be granted the option of remitting the excess over and above such sum as the court shall determine is the reasonable amount of plaintiff's damages, or of having a new trial on the issue of damages."
While it is clear that Spleas v. Milwaukee Suburban Transport Corp. (1963), 21 Wis.2d 635, 645, 124 N.W.2d 593, extended the application of the Powers rule procedure to cases in which prejudicial error had been committed, this in no way modifies the rule of the Powers Case, which is applicable when the verdict is unexplainedly excessive.
Inasmuch as the trial judge mistakenly believed that the circumstances of the case were not such that made it possible to invoke the Powers rule, we conclude that this matter should be remanded to the trial judge for the exercise of his reasonable discretion. If, in the trial court's judgment, the verdict is excessive, the plaintiff must be given the option of remitting the excess over the sum that the court shall determine is reasonable or of having a new trial on the issue of damages. In returning this matter for the consideration of the trial court, we make no determination and express no opinion in regard to either the adequacy or excessiveness of the verdict. This is a determination that must initially be made by the trial court.
By the Court. — Judgment reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.