*1 59S Cоrpo v. Classified Appellant, Risk Insurance Felkl, another, Respondents.* ration 30, 1964. 2 June June * denied, costs, September rehearing with on Motion for *3 stein, War- there briefs Silver For the were by appellant Rоtter, Ted and and Warshafsky & attorneys, shafsky Milwaukee, counsel, and oral of all of Michael I. Tarnoff Mr. argument by Tarnoff. there a brief Simar ski was Giffin,
For the respondents Milwaukee, all of and oral Merton H. Kоch and Giffin, & Merton H. argument Giffin. that for a rule is an order general
Fairchild, J. interest of will be reversed only new trial in the justice The rule does trial abused its discretion. the court where however, court an where the proceeded upon not apply, of the law.1 erroneous view Stats., 270.49
Sec. provides: in the interest of a new trial . No order granting “. . effective, the that valid or unless reasons shall be justicе are set forth in make such order to the court prompted forth the memorandum decision setting or detail therein (1963), 19 Mut. Ins. Co. Automobile Millay v. Milwaukee 330, 337, (2d) 103. 120 N. W. Wis.
such reasons is in reference such order. incorporated by order,
It follows that in such we are to examine reviewing stated, record, the in the the in reasons of order to light determine the is based on an error of law or whether order not, coursе, is an abuse of discretion. The is of question to a whether our of record would lead us order reading trial, and we full new recognize give weight of trial court to observe trial and opportunity the evidеnce. evaluate
The order now before us referred to the reasons set forth decision, which consists of a of transcription therefore turn court’s remarks after We hearing argument. contеxt decision. The first of the court’s decision of de- portion disposed that as a matter of there was no evi- fendant’s claim law to sustain the that defendant’s negligence dence finding The court was оf the that caused the collision. opinion even if the affirmative was a for the jury causation question evidence, a matter not as were compelled by finding a reference to but it is The cоurt did make perversity, law. a he claim of stating not clear at that whether point It is fair to defendant or the court’s own conclusion. say does not that the court that the decision as whole suggest de- injustice finding found any probability fendant was causally negligent. *4 a trial that the order for new was entirely
It does appear to the the court’s conclusions with respect motivated by award. $10,000 injury personal that there not “sufficient credible The stated was court insofar as dam- any finding permanent evidence to support that the could resort to only so jury are concerned” ages awards The also referred damage court сonjecture. of this court and indicat- in four recent decisions considered $10,000 ed that the award to Mr. Felkl was excessive The de- court’s conclusion court light just quoted. to set a in clined which the might figure plaintiff accept lieu of a new trial left the to because evidence matter conjecture. had two reference to
Plaintiff consulted doctors with difficulties and neck after the with his baсk experienced He accident. Dr. Nothum the third after day saw accident, Nothum and about a week thereafter. Dr. for treatment. After further difficulty, prescribed experiencing In went back to Dr. Nothum in 1963. plaintiff January, Dr. him to Dr. a Salinsky, Nothum referred February, in for Dr. ex- Salinsky specialist orthopedics, diagnosis. him, to took X and Dr. Nothum. amined made a rays, report Dr. Nothum sent him to again April, Dr. Salinsky Nothum, saw Treatment was Dr. who prescribed directly by frequently. plaintiff to testify concerning
The court Dr. Salinsky permitted com- subjective and given plaintiff plaintiff’s history causation, as and and to state to diagnosis, opinions plaints, wеll and as complaints based on history permanency, of X rays. and as the doctor’s observations interpretation it that plain- not testify, although appears Dr. Nothum did court, verdict, after The to сall him. planned tiff originally in- was testimony legally that Dr. Salinsky’s concluded of Dr. Nothum. testimony unless corroborated sufficient as to to Salinsky’s testimony Dr. Defendant had objected doctor, he an “examining matters bеcause subjective how- doctor.” testimony, of a treating in the nature not to Dr. Salin- Nothum sent plaintiff Dr. ever, indicated that would which diagnosis examination for sky, specialist, made no Defendant in treating рlaintiff. Nothum Dr. aid Dr. for went to Salinsky to show that plaintiff effort in this action. Salinsky testify Dr. of enabling purpose *5 600
We therefore conclude that Salinsky’s Dr. testimony and had force under our admitted properly prоbative prior decisions, in Ritter v. The discussed Coca-Cola Co.2 county not, course, of have the Ritter did decision before him judge ordered, at the time the trial was new but that decision states the “that if thе trial court determines that a principle consultation is made a claimant with a for the physician treatment [here, bona a purpose obtaining spe fide in treatment], cialist’s to aid the fаct that diagnosis also desires to utilize the a claimant as witness on physician the trial in relation to his will not injury preclude phy sician from as to of his sub patient’s testifying report or from medical conclusions jective symptoms predicating 3 such upon reports.” the order for a new trial We conclude was based There an error of law. is no rule that a upon general plain- tiff must call all his and thе memoran- treating physicians, dum no reason to believe that resulted in injustice suggests this case from the absence of Dr. Nothum. particular
The court did not state that if were county weight given would, $10,000 to Dr. award Salinsky’s testimony have, however, his be excessive. We examined opinion, in order to determine the award can be record whether If sustained evidence. we were satisfied that excessive, award was we would exercise our discretionary trial on new an power grant damages, giving plaintiff under Powers v. Allstate Ins. Co.4 to a lower option accept in lieu of the new trial. amount evidence, construed most favorably plaintiff, may be summarized as follows: behind, hit from
Felkl’s car was and the next suddenly he remembered was an officer for his driver’s thing asking 2 Ante, 157, 439, 2, p. 128 (2d) N. W. decided 1964. June 3 Co., 2, supra, p. Ritter v. Coca-Cola footnote 164. (2d) 10 Wis. 102 N. W. *6 He taken to ambulance license. was emergency hospital by He in his and remained there about two hours. had pain his neck and lower back and right eye tearing. that' he MсCormick,
Dr. treated the testified who eye, cornea, for two found an abrasion which caused pain but has healed. days fully him heat for his neck and
Dr. Nothum treatments gave back, him and to return to work after one week. permitted He after two months because his returned to Dr. Nothum worse, neck and back and the heat treatments were got more back continued. He wears a corset and experiences he it. His neck when tries to do without improved, pain His still when he turns it to left side. back but “snaps” him bothers every day.
Felkl is a molder. He must 75 to cores carry 90-pound He 15 to 20 feet at waist 60 to 75 times a hаd day. height fifteen this work for before difficulty years done without work, he Now, at the end can day’s the accident. of have to He could take a but would lighter job, bend. barely cents He is thirty- take a cut of 80 or 90 hour per pay. cut, he He testified could not afford six age. years his job. and forced himself to continue present sim- on considerable and He carried formerly gardening home, but he has had to rеduce this half. by ilar at activity his examinations of testified concerning Dr. Salinsky He the X he had taken. rays and plaintiff, interpreted of the abnormalities curvature out several pointed back, between cer- and the width of and lower spaces neck vertebra, that certain in- led him to conclude which tain He stated his to the ligaments. opinion had occurred juries accident; that Felkl causеd these were injuries by that the structure ligaments supporting sustained injury tissue, neck; now hold scar that the ligaments and and stimulates resiliency pain; has less elasticity which lumbosacral, the lumbar in the left is there spаsm its does not have normal curvature because of spine muscle that because more than the spasm; average healing period has the condition bewill elapsed, permanent, especially upon or that if he continues heavy lifting frequent bending; doing work, he will have to continue to wear the heavy corset and he will be stress to this annoyed by region.
It is true that the called defendant expert interpreted the X that Felkl held does not rays differently, opinion have back, in either the any neck or permanent disability considered that the continued use corset was detri- mental, and did not feel that Felkl’s were serious complaints or however, difference of disabling. opinion, presented *7 the to for resolve. question jury in mind the the character of his
Bearing plaintiffs age, work, tеstified, the discomfort about which he and the of his to Dr. permanency difficulty according Salinsky, we $10,000 that the cannot award was say beyond range debatable reasonably amounts. reversed,
By Court.—Order cause remanded with directions to reinstate the verdict and enter there- judgment on. in in (concurring part; dissenting part). Wilkie, J.
I must with that of the respectfully disagree portion opinion $10,000 verdict of majority jury not excessive. Even all the evidence in recited viewing most favorable majority opinion to the light plaint iff,1 of Dr. as including disputed testimony Salinsky to the extent of it is conclusion that permanent injury, my $10,000 an award of is plaintiff beyond range I, too, debatable amounts and is excessive. reasonably I would reverse but would not reinstate the verdict but 1 Indemnity (2d) Kincannon v. National Co. 5 Wis. N. W. the trial court an oppor
would rеmand the cause to give either receive a new an to tunity plaintiff option give the trial court may trial or to take such reduced amount as Powers,2 reasonable under the rule determine to be that Mr. I am authorized to state Chief Justice Currie in this joins opinion. v. Respondent, Appellant.
State, Payne, 30, 1964. June 5 June *8 2 (2d) Allstate Ins. Co. Wis. Powers v. Automobile Ins. Lucas v. Farm Mut. Co. (2d) 393. State N. W. 568, 117 (2d) N. W. (1962), 17 Wis.