reversing a new trial order granted "in the interest of justice" because the supreme court concluded that "the great weight of credible evidence supports the findings of the jury"Summary of this case from Sensenbrenner v. St. Paul Insurance Co.
Argued September 13, 1971. —
Decided October 5, 1971.
APPEAL from an order of the circuit court for Fond du Lac county: JEROLD E. MURPHY, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by Frank M. Coyne of Madison.
For the respondents there was a brief by Nugent Nugent of Waupun, and oral argument by J. E. Nugent.
Action by plaintiffs Ann Bartell and Arnold Bartell against defendants Elroy L. Luedtke and United Fire Casualty Company to recover damages for personal injuries sustained as a result of an automobile collision.
Plaintiff Arnold Bartell was driving westerly on West Johnson Street in the city of Fond du Lac, with his wife, Ann, and son as passengers. Three to five car lengths behind him was defendant Elroy L. Luedtke, driving with his wife as a passenger. The two vehicles were traveling about 20 miles per hour as they approached an intersection with the entrance to a food store parking lot. It was dark, cold and clear; the streets were generally dry, but with some frosty areas where there had been thawing during the day. The car in front of Bartell signaled its intention to make a left turn into the parking lot of the food store and stopped, awaiting a break in oncoming traffic.
There are many disputed issues of fact. Bartell's reaction to the preceding vehicle is the first disputed fact. Bartell testified that he came to a slow, safe stop behind the car in question and remained stopped for twenty or forty seconds before he was struck from the rear by Luedtke's car. Luedtke, on the other hand, stated that when he saw the car in front of Bartell at an angle across the street as it was making a left turn, he realized that Bartell would have to stop quickly. He and Bartell stepped on the brakes almost simultaneously. According to Luedtke, Bartell made a very sudden stop and the collision followed almost immediately thereafter.
There is also conflict in the evidence concerning the severity of the impact. Luedtke testified that, although he braked hard, his car "drifted" into the rear of the Bartell vehicle, bumping it lightly. Upon examining the street, he discovered a patch of frost under his car, which he assumes caused him to skid. Bartell's version was that the impact knocked items on the dashboard to the floor and caused the passengers to fly forward, hitting the windshield. The damage to the Bartell car was slight, being confined to a very small dent in the rear bumper. The Luedtke car showed damage to the front bumper and grill. It was apparent that the trailer hitch on Bartell's car had slid over Luedtke's front bumper and grill. Bartell testified that Luedtke's bumper was hanging from one bracket and that one of his headlights was broken. Luedtke denied this, and three witnesses corroborated his testimony that neither headlight was damaged and that the bumper was only scratched, not knocked off the bracket.
The injuries claimed by Mrs. Bartell were also the subject of controversy. She testified that she felt pain immediately upon impact, saw stars and felt nauseated. She made no complaint about any pain, however, for fifteen minutes, until the police arrived to investigate the accident. She was admitted to the hospital and remained there for three weeks, with outpatient therapy for some time following that. Her doctor was called to testify and stated that, in his opinion, to a reasonable certainty Mrs. Bartell suffered acute trauma at the time of the accident in terms of fibrositis, myositis and spasms of the neck muscles. X rays showed evidence of degenerative arthritis with possible old injury. The defense called no medical expert, confining itself to cross-examination of Mrs. Bartell's doctor. On cross-examination he testified that he was not able to say whether the narrowing of the disc space in the cervical area and the degeneration shown on the X rays were or were not caused by the accident.
Mrs. Bartell testified that she took 18 pills a day for the pain in her back and neck following the accident. She admitted, however, that included in the 18-pill-per-day figure were drugs which she had purchased four days prior to the accident: Bardase, a treatment for a bowel condition; Theragran, a vitamin capsule; and Valium, for nervous relaxation. Her treatment after hospitalization included the taking of Papanicolaou smears, a gravity index charge, blood counts, urinalyses and a throat culture. She was treated for chronic sinusitis and laryngitis, anemia and a rash. Charges for these treatments were included in the claim for damages submitted by Mrs. Bartell. She claimed that they were related to the accident, which, she said, shocked her into menopause. Mrs. Bartell admitted that some years prior to the accident she was troubled by a cyst in her ankle, which could have been removed in the doctor's office. She elected, however, to enter the hospital for several days so that her hospitalization insurance would pay for the operation. She also testified that it was "Sort of like a vacation" to go to the hospital since "everything [is] done for you."
The jury found that there was no negligence attributable to either Bartell or Luedtke and that the plaintiffs sustained no injuries and incurred no medical expenses by reason of the accident.
In the memorandum decision on the motions after verdict, the trial judge reasoned that the jury, in failing to follow the court's instruction to answer the damage questions regardless of how the negligence questions were answered, must have based its answer "upon some theory or speculation that this court did not find in this particular case that was borne out by credible evidence in the case." The court found it difficult to envision that Mrs. Bartell would wear a cervical collar, take therapy and travel back and forth for outpatient therapy "unless she was doing it on the advice of her doctor and on the basis of her then complaints." The court also felt that the finding of no negligence on the part of Luedtke could not be supported by the evidence. The judge's view of the accident is as follows:
"We have here the plaintiffs' vehicle that was brought under control due to the operation of an automobile preceding it and making a left turn, and was standing still at the time that the impact occurred from a third vehicle operated by the defendant, Elroy L. Luedtke. It is quite apparent that the plaintiff's vehicle was defenseless in its station on the highway at the time that the impact took place, and that the only one who could have avoided the impact under those circumstances was the defendant, Elroy Luedtke."
Accordingly, it was the finding of the trial court that the verdict as a whole demonstrated bias, prejudice and perversity on the part of the jury, and that Luedtke, as a matter of law, could be found guilty of negligence as to management and control. A new trial in the interest of justice was ordered. Defendants appeal.
The sole issue on this appeal is whether it was an abuse of discretion for the trial judge to order a new trial in the interest of justice.
It is well settled that in cases where the trial court has awarded a new trial in the interest of justice, this court will affirm unless there is a clear showing of abuse of discretion. Van Gheem v. Chicago N.W. Ry. Co. (1967), 33 Wis.2d 231, 147 N.W.2d 237. The determination of whether discretion was abused by the trial court is guided by a number of elementary principles which were stated in Hillstead v. Shaw (1967), 34 Wis.2d 643, 150 N.W.2d 313, and approved in Quick v. American Legion 1960 Convention Corp. (1967), 36 Wis.2d 130, 152 N.W.2d 919; and Loomans v. Milwaukee Mut. Ins. Co. (1968), 38 Wis.2d 656, 158 N.W.2d 318:
". . . It is elementary that in such cases the supreme court does not look for evidence to sustain the jury's findings, but seeks reasons for sustaining the trial court. Essentially, the supreme court usually defers to the trial court's decision because of the trial court's opportunity to observe the trial and evaluate the evidence, and the order is highly discretionary. If one ground relied upon by the trial court in granting a new trial in the interest of justice is correct, this is sufficient to affirm the order of the trial court." Hillstead v. Shaw, supra, at page 648.
It has also been stated that a new trial may be granted in the interest of justice because the verdict is against the great weight of the evidence, even though there is sufficient credible evidence to support the jury's finding. Landrey v. United Services Automobile Asso. (1970), 49 Wis.2d 150, 181 N.W.2d 407.
In reviewing the order, we are to examine the reasons stated, in the light of the record, in order to determine whether the order constitutes an abuse of discretion. One of the reasons given by the trial court for granting a new trial was that Luedtke was negligent, with respect to management and control, as a matter of law. The view the judge took of the evidence indicated that he believed plaintiffs' testimony as to how the accident occurred and rejected defendants' version. If it were true that Bartell was stopped for twenty or forty seconds before the collision, a finding of guilty as a matter of law could be sustained. However, this testimony is disputed. Luedtke stated that Bartell stopped suddenly; and Mrs. Luedtke testified that their car "drifted" into the Bartell vehicle just after the latter had come to a stop. In addition, both Bartell and Luedtke testified that there was a patch of ice. Skidding can occur without fault on the part of a driver. Voigt v. Voigt (1964), 22 Wis.2d 573, 126 N.W.2d 543. Therefore, it could not be stated as a matter of law that Luedtke was negligent as to management or control. Under the evidence this was purely an issue of fact for the jury to determine.
The trial judge was also concerned that the jury had entered "None" in response to the damage question. The trial court recognized, and we emphasize, that the denial of damages does not necessarily show prejudice or perversity on the part of the jury. Dahl v. K-Mart (1970), 46 Wis.2d 605, 176 N.W.2d 342. The trial court felt that the jury must have ignored the testimony of Mrs. Bartell's doctor, which the trial judge characterized as "uncontradicted" and "the only credible evidence" relative to hospitalization. However, the record reveals that the doctor stated that it was impossible to tell whether or not the conditions revealed by the X rays were caused by the accident.
The trial judge emphasized that he could not envision Mrs. Bartell going through hospitalization and treatment unless she needed it. There was evidence, however, that she was not averse to going to the hospital. She stated it was "Sort of like a vacation" to be in the hospital. She also admitted that she would rather be hospitalized than have a simple operation performed in the doctor's office. These statements could have substantially influenced the jury on the question of whether Mrs. Bartell suffered any damages at all. As to treatment, both Mrs. Bartell and her doctor testified that many of the office visits were not primarily to treat the injury sustained in the accident. Mrs. Bartell was going through her menopause and received medication and tests on that account. At one time the doctor was concerned about the possibility of pregnancy and tested for that. Treatment was prescribed for anemia and chronic sinusitis and laryngitis. Aside from Mrs. Bartell's nonexpert opinion that the accident shocked her into menopause, there is no showing how these conditions were related to the accident.
The trial court made no comment on the damages sustained by the vehicles involved in the accident. The testimony clearly established that the car in which plaintiffs were riding showed nothing except a small dent in the rear bumper. From this fact alone the jury could have reasonably concluded that the impact was too slight to cause the injuries complained of. The jury is entitled to draw legitimate inferences from physical facts. Vogel v. Vetting (1953), 265 Wis. 19, 60 N.W.2d 399.
The record in this case clearly indicates that the great weight of the credible evidence supports the findings of the jury. The trial court cannot substitute its judgment for the trier of fact. The fact that the trial judge may not concur in the jury's verdict or that a different jury might reach a different conclusion is not grounds for the granting of a new trial. Field v. Vinograd (1960), 10 Wis.2d 500, 103 N.W.2d 671.
We conclude that the evidence in this case did not warrant the granting of a new trial in the interest of justice and that it was an abuse of discretion to do so.
By the Court. — Order reversed, cause remanded with directions to reinstate the verdict and enter judgment thereon.