Puhl v. Milwaukee Auto. Ins. Co.

• Citation: 8 Wis.2d 343,99 N.W.2d 163
• Parties: Frank PUHL et al., Respondents, v. MILWAUKEE AUTOMOBILE INS. CO., and Joseph Fetzer, Appellants, Willie Myles, Defendant.
• Decision Date: 03 November 1959
• Court: Wisconsin Supreme Court

Page 163

99 N.W.2d 163

8 Wis.2d 343

Frank PUHL et al., Respondents, v. MILWAUKEE AUTOMOBILE INS. CO., and Joseph Fetzer Appellants, Willie Myles, Defendant.

Supreme Court of Wisconsin.

Nov. 3, 1959.

Rehearing Denied Jan. 5, 1960.

McCue & Regan, Milwaukee, D. J. Regan, Milwaukee, of counsel, for appellants.

N. Paley Phillips, Milwaukee, Bertram J. Hoffman, Milwaukee, of counsel, for respondents.

HALLOWS, Justice.

Joseph Fetzer and his insurer contend the trial court erred in refusing to hold that Fetzer as a matter of law was not causally negligent as to management and control and lookout. Fetzer contends that he did all he could to avoid the collision.

There was credible evidence to sustain the jury finding that Fetzer was causally negligent as to lookout and management and control. Fetzer was driving south on highway 175 at 35 miles an hour. His wife was sitting next to him and the other plaintiff sat in the rear seat of the car. Anna Fetzer first saw the Myles car as it was entering highway 175 from the east, or left. At that time the Fetzer car was about 100 feet from the north edge of highway 167. She called to her husband. Up to that time he had made no effort to stop his car. When she called to her husband, the car seemed to jerk forward and then Fetzer applied the brakes. The Fetzer car skidded 51 feet and hit the car driven by Myles. Fetzer testified he knew he was on an arterial and people would have to stop, so he did not have to pay too much attention to his driving. He knew there was a filling station on the northeast corner of the intersection that obstructed the view of cars coming from the east. When his wife yelled, Fetzer glanced up and saw the Myles car. He may have momentarily stepped on the gas but he did not recall it. When Fetzer braked his car the Myles car was in the intersection in front of him. Fetzer testified that if he had applied his brakes at the time his wife yelled he could have stopped in approximately 100 feet and prior to the collision.

At the time of the impact the front of the Myles car was four to five feet over the west edge of highway 167. When Fetzer first saw Myles, the Myles car was a few feet east of the east edge of the intersection. From the time Fetzer first saw the Myles car to the time of the impact he did not blow his horn or attempt to turn to the right or the left. Fetzer testified that if he had been looking prior to the time his wife yelled he would have seen the Myles car sooner.

Myles was driving west on highway 167. The stop sign for highway 175 is located about 132 feet east of the center of the intersection. Myles made a complete stop at the stop sign and then proceeded to the east edge of highway 175. He could not see what was coming on the highway because of the filling station, did not make a complete stop at the intersection, but continued across it. He could not remember what his speed was, but his car was in second gear when struck.

The jury could properly conclude that if Fetzer had been looking and had been more attentive to the road he would have seen the Myles car sooner than he did. Because Myles was negligent in entering the intersection does not necessarily mean Fetzer was not negligent. The operator of an automobile having the right of way on an arterial highway must still maintain a proper lookout. Having the right of way does not relieve one of the duty of watching the road for vehicles on the highway or entering thereon. Oelke v. Earle, 1956, 271 Wis. 479, 74 N.W.2d 336, and Whyte v. Lindblom, 1934, 216 Wis. 21, 255 N.W. 265, 256 N.W. 244.

Fetzer's failure to put on his brakes as soon as he saw the Myles car indicates negligence as to management and control. If he had applied his brakes when he first saw the Myles car he could have stopped before the collision. The jury could conclude that Fetzer delayed in applying his brakes or became startled when his wife yelled at him and momentarily stepped on the accelerator instead of the brake. Fetzer did nothing to avoid the accident except to apply his brakes too late.

Anna Fetzer contends that the trial court erred in not allowing certain medical and hospital expenses. The hospital and two doctor bills for the first year after the accident were paid out of money received by Joseph and Anna Fetzer under the medical-pay provisions of the policy of the defendant insurance company. Another hospital bill was paid after the first year out of insurance funds. There was no proof of any agreement by Anna Fetzer in her individual capacity with the hospitals and doctors to render the services, to pay therefor, or to assume payment thereof. A married woman may contract for medical services in her own right but in the absence of an express contract between her and the person rendering the service, her husband is liable for such expenses. Jewell v. Schmidt, 1957, 1 Wis.2d 241, 83 N.W.2d 487. This doctrine was qualified in an emergency situation. Seifert v. Milwaukee & Suburban Transport Corp., 1958, 4 Wis.2d 623, 91 N.W.2d 236. Here the evidence is not clear who entered into the contracts for these expenses. Medical and hospital bills sent in the name of the wife are not conclusive of the existence of a contract. Neither is the source of payment. We conclude the court did not err in not allowing recovery for these expenses as an item of damage.

This appellant also claims error by the trial court in reducing the amount of an award for the impairment of her earning capacity from $3,000 to zero. The appellant was a housewife. She helped her father with the farm work when she was in Yugoslavia. After she came to this country in 1950 and before the accident, she worked for two companies. It is not in evidence how long she worked, what kind of work she did, or what she earned. Two years after the accident she worked in a factory for four weeks earning $45 a week. She claimed she had to quit because she suffered headaches and her face began to twitch and get numb. She was successfully treated for this ailment and, although she claimed she expected to continue working, there is no evidence she again attempted to work outside of her home. We believe the trial court was not in error in holding that the testimony was not sufficient to sustain a finding of impairment of earning capacity. Impairment of earning capacity should not be confused, however, with loss of wages. Anna Fetzer had no loss of wages because she was not working at the time of the accident and had no regular employment. She received $5,000 for future disability, which included permanent residuals to her spine, head, and back, which constituted a general disability of the body of 10 per cent. The difference between impairment of earning capacity and the effect of permanent disability on earning capacity is sometimes hard to distinguish. It is discretionary with the trial court whether to embrace the impairment of earning capacity in the same damage question covering future disability, or to submit it separately. Sawdey v. Schwenk, 1958, 2 Wis.2d 532, 87 N.W.2d 500. There is a failure of proof here to sustain a finding of $3,000 or any amount for loss of earning capacity. The finding could only rest on speculation and conjecture. Verdicts cannot rest on such grounds. Boutin v. Cardinal Theatre Co., 1954, 267 Wis. 199, 64 N.W.2d 848.

Theresa Puhl in her appeal contends the trial court erred in reducing her award for pain and suffering from $7,500 to $2,500 and granting her an option for twenty days to accept the reduced amount or a new trial. Theresa Puhl was forty-six years of age at the time of trial. Her head, shoulders, chest, and both knees were injured in the accident and she suffered bruises generally over her body. However, she was not hospitalized but was treated by a physician in her home. She remained in bed approximately eight days. She suffered pains in her head for four months. Her shoulders bothered her for some two weeks, and her knees hurt for three or four months. Her chest also gave her trouble. During this time she was pregnant with Mary Ann and worried about the baby and was afraid that something would happen to it. At the time of the trial she testified that she was feeling all right.

The trial court reduced the amount of the award on the statutory ground that the damages were excessive. Sec. 270.49(1), Stats. Upon appeal from such an order, this court's duty is to determine whether or not the trial court abused its judicial discretion in granting the new trial, and unless it clearly appears that there has been an abuse of judicial discretion, such order will not be disturbed. Boughton v. State Farm Mut. Automobile Ins. Co., 1959, 7 Wis.2d 618, 97 N.W.2d 401. Our review of the testimony leads us to conclude there has been no abuse of judicial discretion by the trial court. The appellant has requested in her brief in the event the lower court's reduction of damages is affirmed, the date of the option commence with the date of the remittitur. This suggestion was made in the concurring opinion in Steinfeldt v. Pierce, 1957, 2 Wis.2d 138, 85 N.W.2d 754, 67 A.L.R.2d 186. This appellant did not elect to take the reduced amount within the twenty days and judgment was entered granting a new trial. We believe that when a person appeals from an order reducing the jury's award and granting an option for a new trial, such person should have the benefit of the option if requested of this court in the event the order is sustained. The appellant should therefore be permitted to accept the award of $2,500 within twenty days from the date of the remittitur. If she elects to take such reduced amount, the judgment offered should be set aside as to her and a judgment granted for $2,500 damages. Otherwise, the order granting a new trial on the issue of damages should stand.

The appeal of Mary Ann Puhl presents two questions: 1. Whether there is sufficient evidence to prove the accident caused her to be born a...