Blaisdell v. Allstate Ins. Co.

• Citation: 1 Wis.2d 19,82 N.W.2d 886
• Parties: Marshall M. BLAISDELL, as Ex'r of the Estate of Anna LaVelle, Deceased, Respondent, v. ALLSTATE INSURANCE CO., a foreign corporation et al., Appellants.
• Decision Date: 07 May 1957
• Court: United States State Supreme Court of Wisconsin

Page 886

82 N.W.2d 886

1 Wis.2d 19

Marshall M. BLAISDELL, as Ex'r of the Estate of Anna

LaVelle, Deceased, Respondent, v. ALLSTATE INSURANCE CO., a foreign corporation et al., Appellants.

Supreme Court of Wisconsin.

May 7, 1957.

Donald L. Farr, Eau Claire, for appellants.

Wilcox & Sullivan, Eau Claire, for respondent.

FAIRCHILD, Justice.

The proposed bill of exceptions was served within the prescribed 90 day period. The order extending time for settlement may therefore have been unnecessary, but in any event, respondent did not appeal from either the order extending the time nor the order settling the bill. Erroneous settlement of a bill of exceptions would not be ground for dismissal of an appeal.

The notice of appeal and bond for costs were served within six months after judgment. The appeal was perfected in time (sec. 274.11, Stats.) notwithstanding failure to file the originals with the clerk. Rule 4 (sec. 251.254, Stats.) requires that appellants cause the record to be transmitted to this court within 20 days after the appeal is perfected and they were late in doing so. Respondent does not assert, however, that he has been prejudiced. It appears that settlement negotiations were in progress and that appellants delayed because the return of the record would be unnecessary if a settlement were reached. The motion to dismiss is denied.

Appellants argue that the form of the question in the special verdict was erroneous. They assert the question should have been asked in terms of 'conscious pain and suffering' rather than 'personal injury.' It would have been better, we think, to have used the more exact terms, although the terms used were not erroneous, when considered in the light of the instructions heretofore quoted.

Appellants further assert that the award of $5,000 for the pain and suffering experienced by Miss LaVelle is not supported by the evidence and we agree.

Accurate assessment of money damages for pain and suffering is difficult. In making an award after the death of an injured person, it is especially hard to exclude from one's mind other factors involved in the loss of life which go beyond pain and suffering endured from the time of injury up to the instant of death. Of course, this issue is primarily for the jury, yet it is well established that even in the absence of error upon the trial, or apparent perversity of the verdict, the court must apply its own standards of the highest (or the lowest) award which it considers is supported by the evidence in the particular case. Blong v. Ed Schuster & Co., 274 Wis. 237, 242, 79 N.W.2d 820. In the case before us, the trial court evidently was satisfied that the evidence supported the award, because it granted judgment upon the verdict. We should, and do, give weight to approval of the verdict by the trial court, but must nevertheless review that action.

In the 1920's this court wrestled with the problem of measuring in money the pain and suffering experienced in the interval between injury and death when that interval is relatively short. A very conservative view was adopted. In Wasicek v. M. Carpenter Baking Company, 1923, 179 Wis. 274, 191 N.W. 503, a jury award of $2,625 for three hours of conscious pain and suffering, deadened by opiates, was reduced to $500 as the highest amount that could be allowed under the circumstances. In Rogers v. Lurye Furniture Co., 1927, 193 Wis. 496, 211 N.W. 782, 215 N.W. 457, three days intervened between injury and death. Deceased was unconscious at first, but regained semi-consciousness for much of the time. The jury awarded $8,500 for pain and suffering; the trial court reduced it to $2,000. This court said the case was ruled by the Wasicek case and that $500 was the highest amount an unprejudiced jury could reasonably find. In Theby v. Wisconsin Power & Light Co., 1929, 197 Wis. 601, 222 N.W. 826, 223 N.W. 791, the jury awarded $2,800 for thirty hours, 'not complete unconsciousness' and a 'considerable amount of pain.' This court relied on the Wasicek and Rogers cases and allowed $750 as the largest amount warranted. In Prange v. Rognstand, 1931, 205 Wis. 62, 236 N.W. 650, 652, the jury awarded $1,000...