*1 litem, Guardian ad v. Home Respondent, Teufel, Indemnity Company, Appellant.* 28,
November 1 November 1961. * denied, costs, Motion for rehearing with February $25 *3 a brief Rosenbaum & by there was For the appellant Rosenbaum, Jr., of Rosenbaum, and K. Ralph attorneys, counsel, Milwaukee, K. Ralph oral and argument all of Rosenbaum, Jr. a brief and there was oral argument
For the respondent Milwaukee. R. of Max Geline are: The issues on this appeal Dieterich, J. to sustain medical evidence Is there credible
(1) and disability? of permanent jury’s finding such' awarded for Whether (2) are excessive? disability and suffering, pain, The accident March occurred on Thursday, The plaintiff was and was years age first-year eighteen student at Oshkosh State Teachers Her mother College. Wisconsin, at resided was then Whitefish and she Bay, Hall, in Webster a result living As dormitory. college accident, she car was thrown from the front seat in which she was shoulder of the onto the riding, highway.
After the she accident was taken to her residence located at the college dormitory. Dr. Pfefferkorn was called by the housemother. He administered no treatment. The follow- she obtained an day excuse for ing physical-education classes and doctor he advised her to take some well, hurt, She did feel head aspirin. not and she was stiff and she did attend classes until consequently not afternoon. She missed following Monday classes swimming week, for a but all attended other classes after her absence on and Vivian Friday Monday Teufel morning. testified times, that she saw Dr. Pfefferkorn four on eve- Thursday ning, Friday morning, Monday morning, on She again Tuesday. did receive treatment at these On times. any Saturday accident following she saw a testified she Dr. Ripon Schueller well, At that advice friends. time she did not feel she had a headache was felt as she dizzy were though in a daze. She did not talk said right, funny things, she cards was when unable to played quite hold the cards felt weak. Dr. Schueller *4 up. quite She examined her but no treatment. She did consult a doctor prescribed again 1959, until when she saw Dr. in Brussock order to June certificate be a a to counselor. get camp She did not see the him care any for or treatment with reference purpose injuries of the that she in to received the accident. any trial At the testified that as a result of the acci- plaintiff had both face, dent she received bruises on sides one a eye, eye, scratch on one bruises on her around right knee, head, a the and that she had hurt on back of lump her back. headaches all the injuries for Except continuing had healed left no Her to the scars. testimony relating headaches was that she had intermittent head- experienced a the aches dizziness several times or week day during no in and a half with little or the past year except change a six months she had not had recurrence the dizzy past That she in the accident was good spells. prior physical had no or head- condition and she of dizziness experience aches, and the she after accident suffered dizzy spells Easter when she When she went home for vaca- bent over. tion, accident, a the she month after remained approximately a than the vacation because she at home week period longer not, from headaches and dizziness. She did how- suffered ever, at a that time. consult doctor Teufel, that she Dr. testified saw plaintiff,
Vivian 1959. Dr. Mufson in was September, Mufson Joseph witness called He medical plaintiff. only expert examined the in his office that he on plaintiff Sep- testified a In sub- response hypothetical question tember he “It be counsel for said: would my mitted plaintiff, them, as that this you that from facts relate opinion concussion or brain concussion.” To had a cerebral patient headaches, of the Dr. as to permanency the inquiry “I feel that if the headaches have persisted Mufson replied: half, as a we must consider them permanent.” for year asked Dr. Mufson questions incorpo- The hypothetical of the plaintiff relative to her in them the rated in as well as contained findings injuries subjective Pfefferkorn, Dr. was which received report medical contained of the in- description That report evidence. with a which along prognosis described already juries “recovered,” was and “not disabled.” stated Dr. Pfefferkorn saw the report, According one after the day treatment first *5 72
accident, and that the last treatment took place 18, 1959, six after days the accident. Dr. did Pfefferkorn not find any cerebral or brain concussion.
We find merit no to the defendant’s contention that there was no evidence sustain to of the that the findings jury suffered plaintiff pain, suffering, disability. It was for the to jury determine whether or not the medical conclusions of Dr. Pfefferkorn that was “recovered” and “not disabled” were sound. It medically was also for the to determine jury whether believed they testimony Vivian Teufel her to headaches. It our relating is con- sidered Pfefferkorn, that the medical judgment of Dr. report with the coupled testimony constituted facts plaintiff, sufficient which to rest the upon medical conclusions of Dr. Mufson. A causal between the relationship com- injury of and the plained accident was established by testimony that she had been thrown the car onto the shoulder of the Her highway. testimony to relating injuries, head, those to her specifically was corroborated the medical by of Dr. report Pfefferkorn. The proof future rested entirely that her upon testimony headaches had continued for months. eighteen Whether this is to be believed ato considerable depends extent reaction upon jury’s demeanor on plaintiff’s the stand. Her was for the credibility jury determine. trier “The of the fact is the judge of of the credibility witness to be weight his given testimony.” Engel v. Dunn County Wis. (1956), 77 W.N. (2d)
The second on this is question whether the appeal verdict rendered the jury future plaintiff’s is excessive. disability We have already recounted all evidence the pertinent bearing upon permanent disability. Plaintiff’s discomfort is only that of pain suffering- headaches. She caused suffers from no other injuries. *6 is considered judgment Under these circumstances it our is excessive $12,600 that the injury award of for the same. Under such in that the evidence will not support is an excessive verdict circumstances the rule is that where of and is not the result not due to or perversity prejudice, trial, of the plaintiff error the course during occurring excess the over should remitting be granted option rea shall determine is the and above such sum as the court a new or of damages, having sonable amount plaintiffs Ins. Co. Powers v. Allstate trial on the issue of damages. 78, 102 N. W. (2d) Wis. (2d) (1960), all evi- of the pertinent careful review Based upon that determine we injury, dence bearing upon permanent for $3,000 a reasonable sum to award to is future, Therefore, the plain- and disability. of accepting judgment be accorded option tiff should for sum, $2,000 awarded with the sum of such together for trial, or a total to the date of and suffering pain the issue of a new trial confined to $5,000, having or of damages. is modified by decreasing judgment Court.—The
By $14,600 $5,000, the amount of plaintiffs disbursements, within unless and all taxable costs plus shall the plaintiff from November twenty days court a in writing of this notice the clerk file with limited to the issue of dam- a new trial to have she elects new trial is timely such If such notice electing only. ages filed, reversed, the cause remanded be and will the judgment with this inconsistent opinion. further proceedings The circuit recog- judge (dissenting).
Faiechiud, J. award depended upon damage nized that propriety nauseat- as to the and recurring testimony in belief plaintiff’s as to their in the expert headaches ing and heard the saw circuit judge The permanence. and found that it award. testimony, supported jury’s Plaintiff has life of forty-two Under expectancy years. circumstances, view of the trial particularly verdict, refusal set aside the I am unable judge’s agree that the verdict is excessive.
Marky Inc., Plaintiff and Respondent, Investment, v. another, Defendants and Respondents:
Arnezeder Rauschenberger others, Defendants and Appel *7 lants.
November 1 November