Britton v. Hoyt , 63 Wis. 2d 688 ( 1974 )

Hallows, C. J.

(concurring). I think the time has come that the Powers ¹ rule should be applied to the apportionment of negligence at the trial and appellate level and apportionment of negligence be treated like damages. We formerly said the matter of damages is peculiarly within the discretion of the jury. See: Spiegel v. Silver Lake Beach Enterprises (1957), 274 Wis. 439, 450, 80 N. W. 2d 401; Boyle v. Larzelere (1944), 245 Wis. 152, 155, 13 N. W. 2d 528; Nelson v. Duluth St. Ry. Co. (1928), 197 Wis. 28, 30, 221 N. W. 388; West v. Day (1927), 193 Wis. 187, 195, 212 N. W. 648; Schmidt v. Riess (1925), 186 Wis. 574, 579, 203 N. W. 362. But it has been accepted for sometime that this court and trial courts can determine a reasonable sum for remittitur and additur purposes when the amount of damages determined by the jury is found to be excessive or inadequate. On the same reasoning, this court and trial courts can determine a reasonable apportionment of causal negligence when the jury’s determination is found to be not supported by credible evidence or is against the great weight and clear preponderance of the evidence. There is no more difficulty in finding a percentage of causal negligence than in finding the dollar amount for pain and suffering. Both are judgments to a reasonable degree of what the jury’s composite conscience dictates as proper under the circumstances or when the case is tried to the court, what the court believes is proper. Instead of or as an alternative to granting a new trial in the interest of justice, the court in applying the Powers rule will avoid retrials and effect a substantial saving of both the parties’ and the court’s time.

The very number of cases in which this court has been obliged to grant a new trial in the interest of justice because the apportionment could not be found to be supported by the credible evidence operates to recommend a new rule. See, e.g., cases cited in the dissenting opinion in Vincent v. Pabst Brewing Co. (1970), 47 Wis. 2d 120, 137, 177 N. W. 2d 513. See also: Lawver v. Park Falls (1967), 35 Wis. 2d 308, 151 N. W. 2d 68 (concurring opinion); Pruss v. Strube (1968), 37 Wis. 2d 539, 546, 155 N. W. 2d 650; Bourassa v. Gateway Erectors, Inc. (1972), 54 Wis. 2d 176, 181, n. 1, 194 N. W. 2d 602; and Gross v. Denow (1973), 61 Wis. 2d 40, 212 N. W. 2d 2 (dissenting opinion).

1 Powers v. Allstate Ins. Co. (1960), 10 Wis. 2d 78, 102 N. W. 2d 393.