In Beijer v. Beijer, 11 Wis.2d 207, 105 N.W.2d 348 (1960), the court asked the jury panel whether any of them had an interest in the insurance company insuring the defendant when the company itself had not been named as a defendant.Summary of this case from Crusan v. Ackmann
September 7, 1960 —
October 4, 1960.
APPEAL from a judgment of the circuit court for Price county: LEWIS J. CHARLES, Circuit Judge. Modified and, as modified, affirmed, with directions.
For the appellant there was a brief by Mattson Olson of Phillips, and oral argument by Donald G. Olson.
For the respondents there was a brief by Arthur DeBardeleben, attorney, and William E. Chase of counsel, both of Park Falls, and oral argument by Mr. DeBardeleben.
Action to recover damages resulting from a dog bite. Plaintiffs are husband and wife, and the defendant is the father of the plaintiff Donald Beijer. On May 10, 1958, the plaintiffs came to visit the defendant and his wife, who lived in the town of Harmony in Price county. While there Donald Beijer became interested in a business located in the area and later purchased the business. This extended their visit with his parents until the business transaction had been completed and until they secured a place to live.
The defendant was the owner of a German shepherd dog, named Silver. The plaintiffs had two puppies that are not otherwise described in the record. On the afternoon of July 16, 1958, the defendant and his wife, with some other guests, left on a sight-seeing trip. Jane Beijer was left alone in the home. Silver was in the yard and the puppies were in the house. Jane Beijer called Silver into the house and let the puppies out in the yard. She walked into the kitchen and got a drink of water. Silver followed her and indicated that he wanted to be petted. She patted him on the head and then walked away. She then went to the Deepfreeze to get out some meat for the evening meal. She testified that after she had obtained the meat and laid it on a counter she turned around and saw Silver on his hind feet coming toward her. She threw out her right arm and hand to fend off Silver and he bit her to the extent that his teeth met inside her hand. She further testified that he chewed on her right hand three or four times. After she screamed, Silver laid down. She wrapped her hand in a cloth, as it was bleeding badly, and went to the phone to call her husband. He responded and took her to a doctor in Phillips, where her hand was treated.
In the complaint Jane Beijer asked damages for pain and suffering and for permanent disability to her right hand. Her husband claimed damages for loss of her services and society and companionship, together with medical expenses incurred on her behalf. The answer contained general denials of the allegations of the complaint, mostly on information and belief, and for a separate and affirmative defense the defendant alleged that Jane Beijer was negligent and that her injuries were the result of her own negligence and carelessness.
The case was tried to the court and a jury. At the close of the testimony, liability was conceded and the only issue submitted to the jury related to damages. By its verdict the jury awarded Jane Beijer the sum of $1,250 for pain and suffering and the sum of $4,000 for permanent disability. The jury awarded Donald Beijer the sum of $500 for loss of services of his wife. The trial court answered the question with respect to medical expenses in the sum of $14, about which there was no dispute.
Following motions after verdict, and on December 16, 1959, judgment was entered in favor of Jane Beijer in the sum of $5,250 and in favor of Donald Beijer in the sum of $514, together with costs and disbursements. The defendant appealed from said judgment.
During a pretrial conference the court was informed that the defendant had a liability insurance policy. Just before the jury panel was examined the trial court summoned both counsel to the bench, in full view of but out of hearing of the jury panel, and inquired of defendant's counsel the name and home-office address of the company that issued the liability policy to the defendant. This information was given and the court thereupon directed a question to the panel inquiring as to whether any of them was a policyholder, officer, agent, or employee of the insurance company. No juror replied in the affirmative and thereafter no reference was made to insurance.
The defendant now contends that it was error for the trial court to make such inquiry, and thereby inject insurance into the case. The defendant admits that if the plaintiffs' attorney had good reason to believe or suspect that any of the prospective jurors might have an adverse financial interest to the plaintiffs because of some connection with the insurance company, such an inquiry might be proper. However, in this case there had been no such showing and the court directed the question without any showing of good faith and without any request.
In the court's memorandum decision herein it is stated that it is the custom of the court to make such inquiry and not to permit the attorneys to question a jury panel as to insurance. The defendant contends that he is entitled to .a new trial because of this prejudicial error on the part of the trial court. The defendant's counsel, with knowledge of the trial court's practice, furnished the name and address of the insurance company, made no objection to the court's following its usual custom, and after the question had been asked made no motion for a mistrial. Under those circumstances. the defendant waived any objection he might otherwise have to the making of the inquiry.
The complaint in this action was based upon sec. 174.02, Stats., and did not specifically plead negligence on the part of the defendant. The defendant now contends that at the time issue was joined both counsel thought that the liability of a dog owner was absolute under the statute. Although the defendant did plead contributory negligence on the part of Jane Beijer, he now contends that he did not plead assumption of risk and did not require the plaintiffs to specify the particular acts of negligence on the part of the defendant upon which they relied. On April 5, 1960, this court announced its decision in the case of Nelson v. Hansen, 10 Wis.2d 107, 102 N.W.2d 251, in which said statute was considered, and we hope the law thereunder was clarified.
The defendant now contends that he is entitled to a new trial in the interest of justice because the Nelson Case had not been decided at the time the present case was tried. The circumstances in the two cases are different. In the Nelson Case, before submission of the special verdict to the jury, the plaintiffs requested that the question of comparative negligence be submitted. This request was denied. In the case before us the defendant conceded liability and only asked that the jury determine questions of damages. No objection was made to the form of the verdict. Thus no error was committed by the trial court in the submission of questions and the defendant has waived the right to a new trial on that ground.
The defendant further contends that he should be granted a new trial because the damages awarded to Jane Beijer for permanent disability are so excessive as to indicate passion and prejudice on the part of the jury, and further the award in the amount of $4,000 is not sustained by the evidence.
The medical testimony shows that Jane Beijer at the time of the trial had a limitation of motion, both in flexion and extension, of certain fingers on her right hand with a resulting weakness in the grip of her hand. So far as the record discloses, the thumb and little finger are normal. The damage to the forefinger, as stated by her medical expert, is minimal, and the damage is to the middle and ring fingers. Certain tendons or the sheaths inclosing certain tendons were damaged by the teeth of the dog and this resulted in scar tissue forming and that in turn caused the limitation of motion. The medical testimony indicated that her condition had become static at the time of the trial and that her disability is permanent. Continued use of the hand results in cramping and some pain. The defendant's medical expert estimated the permanent disability to be five per cent of the right hand at the wrist. Plaintiff's medical witnesses did not estimate the extent of total disability.
In addition to the medical testimony, Jane Beijer testified that prior to the day she was bitten she was a typist and bookkeeper and could work for a period of four hours with a fifteen-minute coffee break midway during the period; that at the time of trial she could only type or write by hand for a period of one-half hour without stopping to rest. The period of rest was not stated. In addition she was no longer able to hold a 16-pound bowling ball in her right hand and experienced difficulty in performing certain of her household duties, and in fishing.
The trial court found that the award did not show passion and prejudice on the part of the jury. It was his opinion that the damages were so high that he was astonished at the amount and still the amount did not shock the conscience of the court. Therefore the trial court deferred to the judgment of the jury.
A careful review of the record indicates that the evidence does not warrant the amount of damages awarded by the jury for the permanent injuries sustained by Mrs. Beijer and that the same is excessive. Instead of granting the defendant's request for a new trial, however, we invoke the rule announced in Powers v. Allstate Ins. Co. 10 Wis.2d 78, 102 N.W.2d 393. In that case we announced the following rule (p. 91):
". . . 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."
Upon a careful review of all of the evidence relating to permanent disability, we determine that $3,000 is a reasonable sum to award the plaintiff therefor. The plaintiff should, therefore, be accorded the option of accepting judgment for such sum together with the sum of $1,250 awarded for pain and suffering, or a total of $4,250, or of having a new trial on the issue of damages only.
By the Court. — The judgment is modified by decreasing the amount of Jane Beijer's damages to the sum of $4,250, exclusive of costs, unless within twenty days from October 4, 1960, said Jane Beijer shall file with the clerk of this court a notice in writing that she elects to have a new trial limited to the issue of damages only. If such notice electing such new trial is timely filed, the judgment will be reversed, and the cause remanded for further proceedings consistent with this opinion. Appellant's costs upon this appeal are limited to the sum of $200.