Bakula v. Schwab

• Court: Wisconsin Supreme Court
• Writing for the Court: OWEN
• Citation: Bakula v. Schwab, 167 Wis. 546, 168 N.W. 378 (Wis. 1918)
• Decision Date: 19 June 1918
• Parties: BAKULA v. SCHWAB ET AL.

167 Wis. 546

168 N.W. 378

BAKULA

v.SCHWAB ET AL.

Supreme Court of Wisconsin.

June 19, 1918.

Appeal from Circuit Court, Milwaukee County; William J. Turner, Judge.

Action by Frances Bakula against Martin Schwab, wherein defendant impleaded J. A. Wilkinson. Verdict was directed in favor of Wilkinson, and from a judgment for plaintiff against him, defendant Schwab appeals. Affirmed.

On the 14th day of October, 1915, the plaintiff was a passenger for hire in an automobile operated by defendant Schwab, going from Hales Corners to the city of Milwaukee, both in the county of Milwaukee. The automobile was proceeding in a northeasterly direction on what is known as the Janesville plank road. As it approached the intersection of what is known as the Mill road the driver thereof turned to the left to pass a certain horse and buggy driven by the defendant J. A. Wilkinson. As the driver of the automobile was about to pass, the horse and buggy turned to the left for the purpose of taking the Mill road in a westerly direction, compelling the driver of the automobile to swerve further to the left in order to avoid a collision, the result being that the automobile ran into a ditch on the side of the road, resulting in personal injuries to the plaintiff. She brought this action to recover therefor in the circuit court of Milwaukee county against the defendant Martin Schwab. Upon motion of Schwab the defendant Wilkinson was made a party defendant to the action and it proceeded to trial in that court against both defendants. No cross-complaint was made or filed by either defendant, and there was no issue between them. At the close of the testimony the court directed a verdict in favor of the defendant Wilkinson.

The jury returned a special verdict in which it found: (1) That the driver of the automobile in which the plaintiff was riding at the time she was injured was not in the exercise of ordinary care; (2) that such want of ordinary care was the proximate cause of the injury to plaintiff; (3) that plaintiff suffered pain, mental and physical, resulting from this injury after she left the hospital; and (4) fixed her damages at $3,000.

The defendant Schwab moved to set aside the verdict and for a new trial upon various grounds. Upon this motion the court ordered a new trial unless the plaintiff remit $1,000 from the verdict within 20 days. The plaintiff duly filed her remission of $1,000 from the verdict, and judgment was entered thereon in favor of the plaintiff and against the defendant Schwab for $2,000. From such judgment the defendant Schwab brings this appeal.Lehr & Kiefer and William E. Burke, all of Milwaukee, for appellant.

Joseph G. Hirschberg, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for respondent.

OWEN, J. (after stating the facts as above).

The evidence shows that the day after the accident the plaintiff was confined to her bed and Dr. Graham was called to attend her. He was in constant attendance upon her until the 19th day of December following, when he was discharged, and Dr. Hoermann was employed and attended her until her recovery. Dr. Graham testified that when he first examined the plaintiff she had a temperature of 103 with severe pains over the entire abdomen, especially on the left side. She had an indurated mass on the left side through the vagina extending up to the anterior superior spinous process. As time passed on, that ecchymotic condition became greater, due to the fact that the blood became more stagnant and collected about that injured part. She became very sick, and he was led to believe that she had an abscess in the pelvic cavity. On October 31st he put her under chloroform and examined that region. He found a congealed gaseated mass. He also performed a curettement. On the 21st day of November he performed what he calls a major operation to determine what caused the congested mass in the left iliac fossa. During the time from October 16th to December 19th he saw her from one to three times a day. She was very much excited, weak, had high temperature, and was in bed during all of the time. During that time her condition was generally very painful, and he considered it extremely serious. He expressed the positive opinion that her condition was caused by the injury. When he left her on December 19th she was improving, but she would at least have to have the services of a physician for six or eight weeks after that. She had temperature when he left her, and would have it for at least three weeks from that time.

The plaintiff testifies that after Dr. Graham was discharged and Dr. Hoermann was placed in charge of the case she was taken to the hospital on the 19th of December, where an operation was performed upon her. She remained in the hospital from the 19th day of December until the 10th day of January, when she was taken home, and there confined to her bed until April, 1916. That is all we know concerning her condition after Dr. Graham was discharged, as Dr. Hoermann was not called as a witness in the case. Neither do we know the reasons for, nor the nature of, the operation performed by Dr. Hoermann at the hospital, as the plaintiff could give no information upon that matter.

Upon the trial, pursuant to an order of the court, Dr. P. H. McGovern made a physical examination of the plaintiff. Dr. Graham was present at this examination. He found a fibroid tumor in the womb. He testified that the tumor must have been coming on for some time. It was not due to injury. It was his opinion that the condition described by Dr. Graham was due to the fibroid tumor, and not the injury. Dr. Graham, however, testified positively that there was no fibroid tumor present at the time he was attending plaintiff.

At the conclusion of the testimony defendant Schwab moved to strike out all of the testimony of the plaintiff to the effect that she was taken to the hospital, and was there operated on by Dr. Hoermann and incurred expense, for the reason that it did not appear in the case that she went to the hospital by reason of the accident. He assigns the refusal of the court to strike out this testimony as error. He also claims that the court erred in including question No. 3 in the special verdict, because there was no evidence that she suffered mental pain at any time. Another alleged error is the instruction of the court relative to question No. 3, wherein the court assumed that the plaintiff was in the hospital until April, 1916. Error is also assigned upon the refusal of the court to grant a new trial, for the reason that there was not sufficient testimony from which the jury could honestly and clearly determine the amount of plaintiff's damages; the damages being necessarily based upon conjecture and guess.

[1][2] We will dispose of all these assignments of error with the statement that we are entirely satisfied that whatever prejudice, if any, resulted to the appealing defendant by reason of the court's action in these various respects was adequately compensated by the remission of $1,000 from the verdict. We think the testimony fully sustains the judgment for the plaintiff for $2,000. In the first place, she proved expenses in the neighborhood of $500; $275 to Dr. Graham, services of a girl at $5 per week, and board at $4 per week, for 20 weeks, and the services of a scrub woman at $2 per week for a like period. This leaves but $1,500 to compensate her for the pain, suffering, inconvenience, and loss of time. That she suffered seriously is fully established by the testimony of Dr. Graham, and the trial judge, in his decision upon a motion for a new trial, says:

“It seems quite certain that she was a severe sufferer for some time after the accident, and that her suffering was produced by it.”

She was attended by Dr. Graham for more than two months, and his testimony was that she would require the services of a physician, as a result of the injuries, for a period of six to eight weeks thereafter. It appears that she was confined to her bed until April, and that she had undergone an operation, in the hospital, between the 19th of December and the 10th of January. It does not appear that her prolonged confinement in bed, nor the operation in the hospital, was due to the injury; but, excluding that from consideration, and taking into consideration only the testimony of Dr. Graham, from which it may fairly be inferred that she was confined to her bed for a period of four months as a result of the injury, we do not think the judgment is excessive. Duncan v. City of Grand Rapids, 121 Wis. 626, 99 N. W. 317;Roy v. City of La Crosse, 148 Wis. 266, 134 N. W. 363.

The defendant also seeks a reversal of the judgment because of the error of the court in directing a verdict in favor of the defendant Wilkinson. He claims that he is entitled to a reversal because, if the defendant Wilkinson were held, he would be entitled to contribution; that, upon the present state of the record, Wilkinson has been discharged from liability, and that this is res adjudicata as between Schwab and Wilkinson in any future action which may be brought by Schwab against Wilkinson for contribution. The respondent replies that, while the court directed a verdict in favor of Wilkinson, the judgment makes no disposition of the action as to him; that there is no judgment discharging him; that no appeal has been taken from any judgment to which he is a party; that he is not in court on this appeal; and that his rights cannot be considered.

[3] Wilkinson was a party to this action. His liability to the plaintiff was in issue. A trial thereof was had, and the court directed a verdict in his favor. It is familiar that there can be but one judgment in the same action, and that judgment should dispose of all the issues. While Wilkinson is not mentioned in the judgment, he is not held liable by the terms thereof; and, bearing in mind that the judgment is presumed to have disposed of all the issues, if we are to...