Bethke v. Duwe

Decision Date07 February 1950
Citation256 Wis. 378,41 N.W.2d 277
PartiesBETHKE, v. DUWE et al.
CourtWisconsin Supreme Court

Byrne, Bubolz & Spanagel, Appelton, for appellant.

Lehner & Lehner, Princeton, for respondent.

MARTIN, Justice.

The only question on appeal is whether the award of damages is excessive.

The trial court stated in its opinion:

'At the outset the court feels impelled to state that the trial was conducted by counsel for all parties in an unusually fair and unprejudicial manner. The trial was singularly free from objections to admissibility of testimony or argument between counsel or any of the incidents so commonly found in the trial of personal injury cases. The fact that the accident with resulting injuries to the plaintiff was caused by the negligence of the defendant Duwe in driving his automobile while intoxicated was kept away from the jury, and none of the jurors had, prior to the time they were empaneled, known of or heard of the accident in question. The court feels very definitely that no prejudicial matters crept into the trial which might have influenced the jury in determining the amount of the damages of the plaintiff.

'The court feels that the award of damages as returned by the jury in their verdict must be sustained. The court feels likewise that the amount found by the jury is probably in excess of what the court would have granted had the case been tried to the court without a jury but that is not the criterion to determine whether or not the verdict should stand.'

The plaintiff, an unmarried school teacher in her early thirties, was injured on November 21, 1947. She was taken to the Mercy hospital at Oshkosh, and the attending physician testified:

'At the time I saw her her injuries consisted of a laceration of the scalp and also several small lacerations over the left eyebrow and an abrasion of the forehead pretty close to the center about the size of a half a dollar. She was conscious but in addition to that her diagnosis was a brain concussion in addition to the lacerations. We had an X-ray taken of her skull which was negative for skull fracture. All of the lacerations were cleaned and sutured and she was admitted to the hospital and treated from there on systematically. She was in the hospital from 11-21 to 12-3, 1947. At the time of her discharge the lacerations had healed without any evidence of infection.'

After spending twelve days in the hospital, plaintiff was taken to her home in Ripon, spent two weeks in bed, then was in bed part of the time and went back to work as a school teacher on January 26, 1948. She followed the advice of her local physician and went to a skin specialist in Milwaukee for X-ray therapy for her forehead, which continued from January 19 to August 14, 1948. Unable to be relieved of the pain that she was suffering in her shoulder, neck, and eye, her medical advisors sent her to various specialists and she has been at Mayo's in Rochester, Minnesota, and the Wisconsin General Hospital at Madison, Wisconsin.

In October, 1948, plaintiff's counsel sent her to a doctor at Princeton, Wisconsin, who took several X-rays and testified that he believed she had a fracture of the cervical vertebrae, 4th, 5th, and 6th, which he thought would account for the pain in her neck and upper back, but he was not sure of his interpretation so referred her to a doctor at Fond du Lac for verification.

The doctor at Fond du Lac testified as follows relating to the X-ray films made of the cervical vertebrae of plaintiff:

'A. The films in total show entirely negative with the exception of the lamina, that is the connection of the right side of the fifth cervical vertebrae, of an area of roughness which could be due either to an old fracture which had healed or otherwise. Otherwise the films are negative.

'Q. And would that injury account for the pain she is now complaining of in the neck? A. It could be one of the causes. I am not aware of what she is complaining of.

'Q. Well she is complaining of pain in the neck and spine which rotates into the left shoulder. Would that account for it? A. Not very well. This is on the right side.'

Plaintiff testified: That the upper part of her vertebrae, her neck, and her left shoulder ache continuously causing her to be very much fatigued at the end of the day. For a long time she has taken physiotherapy treatments. She was never bothered with headaches previous to the accident, but now has them at least four times a week. She has a dull ache in her left eye, and the eyelid feels stiff. As a result of the injury to her right knee, it is now in such condition that she falls quite frequently when walking upstairs. These tumbles are extremely humiliating to her as a school teacher as they occur in the presence of her pupils.

With regard to her facial disfigurement, plaintiff testified:

'Q. Now this big horseshoe scar which you have over your forehead how much of a cut did you have there, if you know? A. Well the cut was down to the skull and it was cut all the way around and the flesh was raised up into my hairline.

'Q. Were stitches required on your forehead? A. Yes many stitches were required. I asked Dr. Steen to count the number of stitches and he proceeded one morning and he counted up to...

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