*1 that an warrants the conclusion 95 N. W. (2d) as the cause of would cause skidding testimony absence of Poole Case fail. Insofar case to injured party’s modified this it must be deemed conveyed impression, opinion.
theBy affirmed. Judgment Court. — Currie, C. dissents. J., Byrne others,
Boodry, v. Appellant, Respondents. 3, 1964. February 3 March oovo *3 CO00 For the there was a appellant brief and oral argument by Edward Rudolph Milwaukee.
For the respondents there was a Bender, brief by Trump, Davidson & Godfrey, attorneys, Kneeland A. Godfrey counsel, all Milwaukee, and oral argument by Kneeland A. Godfrey.
Currie, C. The two issues presented appeal J. are:
(1) Did the circuit court abuse its discretion in finding excessive the jury’s award of for plaintiff’s damages for personal injuries ? *4 If
(2) the foregoing question is answered in the negative, did the trial court abuse its discretion in fixing as a reasonable amount to measure such damages ?
Excessiveness Damages. Where a trial court has reviewed the evidence and has found a jury verdict awarding damages to be excessive and
oo ON therefor, lias fixed a reduced and has determined amount that there on should be new trial "unless the damages exercises an to take on the reduced option judgment amount, this will if an court reverse we find abuse only on the discretion Lucas Farm the trial court. v. State part 568, 571, Mut. Automobile Ins. Co. Wis. (1962), (2d) N. 117 W. and cited therein. (2d) cases In dam- the evidence to determine whether reviewing are both ages excessive the trial court and this court must view the evidence m the most favorable to light plaintiff. Kincannon v. National Indemnity Co. 5 Wis. (2d) (1958), court, however, 92 N. W. trial The is (2d) =not to search or out one several isolated required pieces testimony, which alone damages sustain the standing might found rather must all but review the evidence by jury, then, whole, on and viewed bearing as a damages reasonably consider the same in the most favorable to light the plaintiff. from On a determination appeal trial court excessive, found were will damages this court not find if abuse discretion there a reasonable exists basis for the trial court’s determination after con- direct resolving any flicts favor of testimony plaintiff.
In the of these we light now to a principles review of turn the evidence on bearing plaintiff’s damages in- personal accident, juries. which Immediately following occurred on a Friday night, was taken Emergen- Johnston cy He was there examined Hospital. Claude who recorded such examination disclosed a superficial lacera- tion abrasions to scalp shoulder, side, the right An hip. antiseptic dressing placed the laceration. Plaintiff was advised to consult his family physician sent home. At time trial in January, Dr. Claude had no recollection of his independent examination of plaintiff, it, from the apart record made of and could not state whether *5 Cn MD O ascertain in order to disrobe to had been required
plaintiff hidden the clothing. by contusions there were any whether he was groggy after accident the Plaintiff testified the at transpired which remember anything and unable to whole plaintiff’s morning (Saturday) The next hospital. of bed alone until ached, unable to out get and he was body he was That morning and a neighbor. assisted his wife Mroczkowski, at a general practitioner, examined Dr. of such findings This recorded the latter’s office. physician muscles of the Tightness which were these: examination over to head was pulled the left neck so-that the posterior side; the right right one bruises and scratches to the hip, back, mid-back; on the back of a small cut lower right head; on scratches side right side of the right neck; to back of and side of the right a contusion black stomach in the area which was front abdomen blue from from small vessels underneath the blood bleeding skin. Mroczkowski also Because of unsteadiness of Dr. gait, then a concussion had sustained but diagnosed did not record this. Mroczkowski prescribed apparently rest, bed cold for two of heat to the days, packs application areas, bruised and advised return- to work light November Tuesday, 18th.
Plaintiff returned home and in bed until stayed Monday when in. court traffic appeared give testimony court. The next he returned to work at the morning (Tuesday) of his Unit plant At employer, Drop Forge. the time the occurred accident he was eleven months of twenty-nine years, feet, tall, six two inches age, weighed excess of 200 When pounds. plaintiff was twelve old he had years sus- tained a fractured lower arm in badly an automobile right arm, which accident left him with a shorter right ability normal, straighten right arm 8S only percent stiff two on the fingers right hand. At the time the acci- *6 at dent was as assistant hammerman plaintiff working for and one- held this two Forge, Unit Drop having position half The a number of mechanical hammers years. had plant which red-hot of steel into various forged pieces shapes. men, Plaintiff worked as a or four one of crew of either three hammer, on the size of which men were depending paid on an incentive or a basis. The incentive rate was piece-rate rate, each crew and individual member received a crew cer- tain fraction a crew as Plaintiff testi- earnings group. fied the accident his before between earnings averaged and hour and that his per earnings were average $3.25 $3 week. per Because from in- his inability $125 resulting unable to juries, plaintiffwas his perform regular job during the first month after the accident. Instead he was a given week, job which inspector, paid so that per during $95 that first month after the accident had plaintiff loss wage per week. Thereafter his plaintiff resumed work as $30 hammerman, an assistant for a although while he selected the smaller However, hammers to work on. although plain- tiff testified that his on work smaller hammers less paid hammers, than work on the larger testified no wage loss other than that sustained the first month while working as an inspector.
Dr. Mroczkowski saw plaintiff the second time 22, Saturday, November 195S. He then gave plaintiff an injection to hasten the absorption blood in the bruised areas, and prescribed deep-heat treatments. Dr. Mroczkow- ski saw plaintiff for a frequently while after November 1958. Plaintiff’s chief complaint was pain the left shoulder and left elbow. The shoulder trouble was diagnosed as left subdeltoid bursitis trouble, and the elbow as left lateral epi- condylitis. These responded treatment and cleared up. However, continued complain pain left shoulder 27, 1959, and on Dr. May Mroczkowski referred
VO Ol Dr. While specialist. an orthopedic Collopy, Dr. plaintiff to Mroczkow- to Dr. report his written not testify, did Collopy This record. read into the was ski, dated June cleared up; side had back right Plaintiff’s stated: report shoulder; left and that the of the left no atrophy there tendinitis, had condition, as- diagnosed which was shoulder recommended a continuance Collopy some. Dr. improved Mroczkowski,- deep-heat the treatment given i.e.s into treatments, cortisone the shoulder. Dr. injections directions, and continued corti- these followed Mroczkowski for a while. sone injections declined markedly to Dr. Mroczkowski
Plaintiff’s visits twice, but saw Dr. Mroczkowski in 1961 *7 24, and November 9th. On May 24th being May the dates left was primary complaint pain plaintiff’s testified Dr. Mroczkowski that what- motion. shoulder upon 9, 1961, him on November consulted about ever plaintiff Mroczkowski saw plaintiff shortly had cleared Dr. last up. time, For on December 1962. the first Dr. before trial some the anterior flattening then discovered of Mroczkowski which, testified, deltoid muscle he indicated of the left portion over the of the region also observed a clicking He atrophy. of arm of motion the left tendon. While some range biceps normal, if flexed and turned outward this arm was plain- When the arm was held one tiff severe pain. experienced on there was severe pain by pressing position particular Dr. Mroczkowski also found of the long biceps. head point back tender and He painful. diagnosed lower right from the accident con- residuals of the to injury permanent and a residual of of tendinitis fibrositis a left biceps sist back in the lumbar region. lower Dr. Mroczkowski right of Plaintiff made no estimate any percentage disability. his back that at time of trial longer himself testified no much, ho longer him so there was constant pain, bothered hold if should to grab something “just but that happen
Ck) >o Oi there. be would movement twisting pain and make right” tendinitis, if testified, with to the Plaintiff also respect would movement make an unusual twisting pain he would hours and last three which would sometimes produced three sometimes two-or days. examined an Regan, orthopedic surgeon, plaintiff testified
behalf of defendants on He January that he found no tendinitis or left shoulder atrophy no of a traumatic area. He further evidence such change accident, if it stated that is caused would occur atrophy because traumatic usual- very early very rapidly atrophy within six weeks ly develops the date the accident. respect With to his with Unit employment Forge Drop accident, to the as subsequent "testified In follows: 1959 he tried out a hammer when an operator opening classification arose. After job twenty-four days trial, however, he had to it give because his up left shoulder him. bothered At that time this job then paid per $3.40 hour but at time trial in January, the rate was about an hour. Plaintiff returned $3.60 his $3.70 as a job hammerman’s assistant and continued in such capacity until 1961, when he August, transferred into the shear and saw While department. testified that he told the super- intendent he wanted the transfer because he could not “take” job more, his old any he actually benefited financially *8 this transfer. This is apparent because at time of trial plain- tiff testified he was making about per $4.30 job hour. The in the shear and saw department consisted of saw, setting billets sawed, in to placing be and then placing them in a box. Apparently had no in difficulty performing this job from August, to date of trial.
In 1959 plaintiff became one of several union in stewards the plant. This position consumed about five or six hours per week of plaintiffs working time. In May, he was chosen chief steward and from then on spent about 70 per-
VO Ol (cid:127)Í — n of his remainder business and the in union- his time
eent him-his “aver- The employer paid work. in time production work, in rate,” earnings production based on his earned age his hours when he performed working during for the time “earned rate Plaintiff testified that steward. duties as union duties while performing which he paid hour” per This ob- made included what he at piecework. as steward hammer when he was a assistant refers to the period viously in shear and saw department, the working when not that while at working production since it clearly appears he was a straight m shear and saw department paid labor would still of this record plaintiff rate. On state hourly if hour he were to give per earning approximately $4.30 full chief and devote time lose the stewardship or up in the shear and saw department. work production mea- are to be disability for Damages permanent partial rather than in terms of loss of in earning capacity sured Nevertheless, fact, loss of earnings. terms of plain- make more at for money is now able to work production tiff in and saw same the shear than he department employer have as either a hammer assistant or a hammer would opera- tor, extent of his has some materiality disability terms capacity. measured earning the evidence suffering, With discloses respect pain he was in considerable the first few pain days following bursitis in the shoulder and the epi- the accident. The left several, months. elbow were for the left painful condylitis condition, shoulder After the bursitis cleared up plaintiffs as tendinitis Drs. Mroczkowski and was diagnosed which Mroczkow- caused severe some time. Dr. pain Collopy, of 17 for services shows the administering statement ski’s treatments, last being January, physiotherapy shoulder, on March the last being into the injections administered Plaintiff the heat treatments testified Plaintiff also testified relief. his wife finally produced *9 of he had that for a considerable time headaches. period However, Mroczkowski to made having did not testify record headaches. any plaintiff’s complaining In Plaintiff -medical bills in the sum of proved $288. addition he lost week in the first per earnings during $30 month when the accident following performed lighter work as an amount to inspector which would approximately $130.
After a careful the review evidence bearing damages our it is considered that circuit judgment the court did not abuse its discretion in that determining the award of jury’s $15,280 damages for plaintiff’s personal injuries ex- cessive.
Reasonableness Amount Fixed Damages
Trial Court in Granting CLption. One of the reasons advanced by as plaintiff, why of $6,000 amount fixed the trial court as reasonable dam- discretion, constituted an ages abuse of is -that trial court’s memorandum opinion indicates in that this fixing amount that court was only item of considering per- manent such thus items as injury, pain suffering date of trial and medical expenses incurred were ignored. one sentence While of the opinion .memorandum taken out of contention, context supports reading opinion as a whole makes it clear that the trial court fixed the reasonable of plaintiff’s amount damages in- personal juries, that it was not confined solely the permanent- injury aspect.
Where this court finds no abuse of discretion in a trial court’s that determining the damages awarded aby jury are excessive, it is an case only unusual we that will disturb amount which the trial court has fixed as reasonable for the purpose granting option to accept judg- ment amount lieu aof new trial on damages. It cannot held a certain amount alone represents rea- Ln OvVO *10 and that injuries, or a injury, for damages particular
sonable In is unreasonable. other above that below or anything an unrea- words, fall between damages anywhere reasonable unreasonable high. low and an sonable dis- a court has abused its In whether trial determining of a cretion, sum as reasonable amount in a certain fixing of an to with comply the devising option for purpose damages whether, Case,1 if of apply the Powers we the test the rule of trier the facts been sole of sitting trial court had the amount, such in such we would disturb had fixed damages $6,000 test arrived at figure to the Applying finding. case, in we would disturb such trial court not the Therefore, in we find no abuse of discretion the finding. a such sum is reasonable trial court’s determination that for award as damages plaintiff’s injuries. amount to However, it to we deem advisable out that point of the bottom of the reasonable range damages approaches be If been in plaintiff. which could awarded we had sitting we would have trial court’s determined the reason- position $6,000. at than figure able a We damages higher pointed out the rule in Powers Case that new therein enunciated was the of rule the basing option the prior-existing figure, replace at least be the amount for granted plaintiff, the option be rendered verdict might unprejudiced which a jury The for instructed. reason advanced this change properly would reduce number of instances was that it the in which refuse to elect to exercise the would the plaintiff option. When, would tend to reduce new trials. Thus it as in the court, case, a trial the framing fixes option, instant the reasonable near the bottom of damages amount of the range reasonable, objective is the of this court in of what adopting is likely Powers Case rule defeated. the order is Court.—The from affirmed. By appealed 1 Ins. (1960), v. Allstate Co. 10 (2d) Powers Wis. 102 (2d) N. W. with (dissenting). I.agree majority
Wilkie, J. its lower court’s determination that the affirmance verdict was excessive. I do not with jury majority agree in its affirmance the lower court’s afforded to the option under the In Powers rule. the amount opinion my is not a sum option reasonable ($6,660) considering all for an his evidence award to the for It is below the debatable damages. range reasonably case, amounts award facts under the viewed jury in the most I light favorable to the would raise the plaintiff. amount the option, that the trial court abused holding first *11 his discretion in amount setting the second option, award, as the total amount of the subject apportionment plaintiff’s would rea- negligence, be sonable.
I realize that since rule the Powers our adopted court has not raised the amount of as determined option lower court. We have reinstated the jury verdict several n cases,1 I but would not do so here since the is award jury If excessive. of the Powers rule purpose is fur- thered, i.e., retrials,2 elimination of I no unnecessary see not, reason this court should why an unusual but proper this, case such as raise the amount of the to a option rea- figure sonable where the amount set lower by the court is not within the range reasonably is, debatable amounts and therefore, unreasonable. 1 Makowski (1960), (2d) v. Ehlenbach 11 Wis. 103 N. W. 907; DeLong Sagstetter v. (2d) (1962), (2d) 16 Wis. 114 788; (2d) N. O’Brien v. W. State Farm Mut. Automobile Ins. Co. 551, 117 (2d) 17 (2d) Wis. W. (1962), N. 654. 2 “We have found tool, the Powers rule a valuable both courts, court in trial unnecessary to avoid retrials.” Spleas Corp. Milwaukee
v. & S. T. 21 (1963), (2d) Wis. N. (2d)W.