*1 Albers, Insurance v. Herman Mutual Respondent,
Company another, Appellants.
September 5 October *2 Cornelisen, For the a brief there was appellants Denis- by sen, Kranzush,. Farrell & oral and Demid J. argument by Condon, all of Green Bay.
For there was a Brief respondent by Bittner & Rey- nolds of Green and oral Bay, argument Robert L. Bitt- ner. The issues
Wilkie, on are: appeal J. 1. Is there medical credible evidence to sustain the jury’s and pain, suffering, discomfort? affirmative, If such be answered are 2. such discom- awarded for damages pain, fort excessive? such are what is the If op- proper
tion as an alternative to to extend the plaintiff granting trial new as to damages? his
In the accident the was thrown about in car not knocked He unconscious. was imme- although at St. Vincent’s Green hospitalized Hospital Bay diately half, there for a which and remained day during X his traction. taken rays neck was placed his hos- showed no fractures. After release home stayed complaining pital neck, and his left shoulder. part lower *3 he made Dr. trips family physician, Initially weekly these Richard Later visits ad- monthly. Jensen. to his own received plaintiff dition to visits physician, exercises physical heat therapy performed prescribed of trial curative At the time at a Bay workshop. Green under was still his physi- 1961) plaintiff (November, still care at the trial the plaintiff complained cian’s that he neck, He stated in his shoulder. as left he could his head far to the could rotate raise his he could not and further that to the accident prior his left shoulder without pain. above left elbow limita- these that physical testified due The plaintiff that occupation, his usual pursue he was unable to tions less- forced to He was acquire mechanic. automobile of an hunt, no longer that he could He testified work. strenuous children, household heavy or do with “roughhouse” further He to the accident. prior done such as he had tasks of sleep continuous night had not had one he testified He stated enduring pain. because the accident since His in his car. distances driving long had trouble he he wife testified that had his neck ob- difficulty turning serve when he backed up.
Two medical witnesses were called the trial. and a attending physician general practitioner, Dr, testified on behalf of Dr. Jensen, Albert plaintiff. Freedman, L. an orthopedic specialist, testified for the de- fense. Dr. Freedman examined the on two differ- plaintiff October, ent occasions to trial prior 1961). (February The substance of the men these is as follows: testimony Dr. stated that the had a permanent Jensen to the fibrous or muscular tissue on the left side of the cervical and thoracic of scar upper spine, consisting tissue torn, where fascial areas have been or which separated caused Mr. Albers’ pain, but that he could not prove Dr. objective any findings. stated that the plain- Jensen tiff had muscle- experienced the area of the cervi- spasms cal and in the left side of his spine neck. The last time there were specific findings these spasms summer of 1961. Dr. Freedman testified that on the two occasions that he examined the he could- find no objective or evidence limitation of motion. He If stated that there were a limitation in motion of plain- tiff’s left arm and shoulder there would abe finding of of the atrophy, wasting away muscles involved. Neither nor such any On his atrophy. first Jensen examination Dr.- Freedman testified that the plaintiff had *4 hand, in more his in his grip right than left he was though left-handed. He also stated that was there tenderness to pressure cervical spine region “the over the left intervertebral musculature and also to the medial of aspect the left muscle.” trapezius find no
We merit to the defendant’s contention that there was no credible medical evidence to sustain the of that the jury plaintiff suffered future pain, and discomfort. in the accident. injured unquestionably -in He was and one-half one hospital days, during which time he was in neck traction. He did have muscle for a even after with spasms leaving hospital, and discomfort. re- We have accompanying pain already all his counted of and the find- present complaints pertinent of the two doctors. On the ings permanent as follows testified to an ex- injury (referring Jensen amination made on : September 1961) Now, “Q. would tell court you what you jury examination, found as a result of that doctor? A. At the examination, of this time his left side of his neck and he still with his persisted pain his
shoulder. He stated that headaches, in- which were of course an -his initial part had subsided. He still had juries, difficulty completely arm his left above his shoulder level without at- getting had, himself with arm. He tempting help opposite still, the his head to the unable to left. was tilting however, demonstrate muscular at this any specific spasm, on time the examination.”
He further testified: So, doctor, “Q. on the basis of seen treated having months, for a have been this patient period a eighteen you able as to what his trouble or con- diagnosis to formulate dition is? A. I think own of this is that he my opinion sustained severe quite whiplash injury originally had, on has in view of him first observing neck. He basis and basis and weekly monthly although seeing subsided, has muscle he still has the as- original on examination the various areas and he pects definitely work. pain is limited somewhat he can do at his what is that he must have—the fact My opinion eighteen-month has not subsided over an period—a tissue, the fibrous tissue or muscular tissue, on of the cervical the left side. . . . spine fibrous Now, I “Q. I know have stated would your you opinion. for the record: Do have an you like to down pin on a reasonable of medical degree based certainty now *5 390 related and
to or the condition that have you whether not neck, shoulder, is, plaintiff, relating an or and into his do have as to whether you opinion IA. have an opin- not that is or temporary, permanent? ion, yes. that,
“Q. what is A. Following your opinion? My opin- ion is that is of a nature.” permanent it cross-examination, as fol- Freedman testified
Under lows:
“Q. of my muscle Assuming involuntary spasm part here, months; a of that there over sixteen hypothesis in for the muscle those has been intermittent testing Now, am that as of areas. assuming part my hypothesis —I assume that in asking you answering my question —for time, reach a have to then this continuous period you a to the soft tissue injury diagnosis that, A. I would various areas have indicated? say reason, factors, is all of these that there you assuming within the sixteen or eighteen- would have to say probably is in all month there probability permanent thing.” period, record, there was sufficient view the evi- certainly and future pain dence to support instant case. suffering is be circumstances The case distinguished Diemel v. Weirich N. W. that, held 651. In that the court where an is case in character and of such nature that a subjective layman whether cannot with reasonable know or not there certainty be future there must be pain suffering, will competent on the testimony bearing permanency expert likelihood the injured or the will person such injury, before be may endure recovery therefor; and that the state- unsupported subjective allowed a medical are not injured party, expert, ments of the sufficient. *6 case medical instant there was sufficient competent the of the
testimony, independently testimony in terms of his to the subjective support complaints, that the did sustain a plaintiff and the left and as a result of the acci- neck shoulder Therefore, dent. the is its determination jury supported and and discom- that there was past pain, suffering, fort to the and are they back plaintiff supported bringing a verdict for the plaintiff. $10,000
nowWe examine the of whether the award for and future pain, suffering, discomfort past is excessive. It is our considered that the award judgment $10,000 is will excessive that the evidence not support same. It is true that the evidence be considered must in the most favorable to the The rule was light plaintiff. in the case of Kincannon v. National stated Co. Indemnity 231, 884, 5 Wis. 92 N. W. where our (2d) (2d) (1958), held, court 233: page
“In whether the considering jury’s appraisal damage^ for is must of we pain, suffering, disability course view the most favorable evidence light plaintiff.”
It is also true that the amount of the verdict brought to the attention of the trial court on motions after verdict refused to and that the court set aside or decrease the award. Here the trial court stated: state, however,
“I wish to that would have been much better satisfied had the found a lesser amount in an- jury liberal, swer to that The amount was generous inquiry. mean it is but that does not excessive.” necessarily the fact that the trial court did dis- Notwithstanding award, turb the it is our to declare the award exces- duty where, here, the award for sive made plaintiff’s past is and future and discomfort excessive pain, evidence will not same. support all evidence Based a careful review of the pertinent upon and his and fu injuries, bearing upon plaintiffs past discomfort, we ture determine pain, suffering, $6,000 is a sum award to the reasonable and future and discomfort. Under the pain, suffering, Allstate rule of Powers v. Ins. Co. (2d) 393, should be N. W. accorded sum, for such together option accepting judgment with the sums awarded for other in accordance verdict, with the or of a new trial confined special having *7 cases, in which to the issue of Other ver damages. single excessive, were the court to be dicts the are: v. given option, Beijer Beijer plaintiffs 207, 348; 11 105 N. Wis. W. (1960), (2d) (2d) Teufel v. Home Co. Wis. N. Indemnity (1961), (2d) 893; Freuen v. Brenner W. (2d) 445, 114 N. (2d)W. sum herein determined to be reasonable shall be sub- as the other to reduction as to the damage's required
ject extent negligence. shall be re-
Accordingly, judgment appealed cause remanded. The shall remit versed and the court, within from the date of days to the trial twenty remittitur, $3,600 amount amount of of the reduc- (the further reduced to effect give tion here do, or on so to the trial court failing plaintiff’s negligence) trial on issue shall order a new single damages. reversed, and cause Judgment remanded By Court.— not inconsistent with this opinion. proceedings further (dissenting). Dieterich, Gordon, Faiechild, JJ. with that which con- portion We disagree $10,000 is award of cludes therefore we dissent.