Boodry v. Byrne

• Decision Date: 03 March 1964
• Parties: James L. BOODRY, Appellant, v. Gregory W. BYRNE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 503

126 N.W.2d 503

22 Wis.2d 585

James L. BOODRY, Appellant, v. Gregory W. BYRNE et al., Respondents.

Supreme Court of Wisconsin.

March 3, 1964.

Edward Rudolph, Milwaukee, for appellant.

Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey, Milwaukee, of counsel, for respondents.

CURRIE, Chief Justice.

The two issues presented by this appeal are:

(1) Did the circuit court abuse its discretion in finding excessive the jury's award of $15,280 for plaintiff's damages for personal injuries?

(2) If the foregoing question is answered in the negative, did the trial court abuse its discretion in fixing $6,000 as a reasonable amount to measure such damages?

Excessiveness of Damages.

Where a trial court has reviewed the evidence and has found a jury verdict awarding damages to be excessive and has fixed a reduced amount therefor, and has determined that there should be a new trial on damages unless the plaintiff exercises an option to take judgment on the reduced amount, this court will reverse only if we find an abuse of discretion on the part of the trial court. Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis.2d 568, 571, 117 N.W.2d 660, and cases cited therein.

In reviewing the evidence to determine whether the damages are excessive both the trial court and this court must view the evidence in the light most favorable to plaintiff. Kincannon v. National Indemnity Co. (1958), 5 Wis.2d 231, 233, 92 N.W.2d 884. The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff. On appeal from a determination by the trial court that the found damages were excessive, this court will not find an abuse of discretion if there exists a reasonable basis for the trial court's determination after resolving any direct conflicts in the testimony in favor of plaintiff.

In the light of these principles we now turn to a review of the evidence bearing on plaintiff's damages for personal injuries. Immediately following the accident, which occurred on a Friday night, plaintiff was taken to Johnston Emergency Hospital. He was there examined by Dr. Claude who recorded that such examination disclosed a superficial laceration of the scalp and abrasions to the right shoulder, side and hip. An antiseptic dressing was placed on the laceration. Plaintiff was advised to consult his family physician and sent home. At time of trial in January, 1963, Dr. Claude had no independent recollection of his examination of plaintiff, apart from the record made of it, and could not state whether plaintiff had been required to disrobe in order to ascertain whether there were any contusions hidden by the clothing.

Plaintiff testified that after the accident he was groggy and unable to remember anything which transpired at the hospital. The next morning (Saturday) plaintiff's whole body ached, and he was unable to get out of bed alone until assisted by his wife and a neighbor. That morning he was examined by Dr. Mroczkowski, a general practitioner, at the latter's office. This physician recorded findings of such examination which were these: tightness of the muscles of the left posterior neck so that the head was pulled over to one side; bruises and scratches to the right hip, the right lower back, the right mid-back; a small cut on the back of the right side of the head; scratches on the right side of the back of the neck; and a contusion to the right side of the stomach in the front abdomen area which was black and blue from bleeding from small blood vessels underneath the skin. Because of unsteadiness of gait, Dr. Mroczkowski also then diagnosed that plaintiff had sustained a concussion but apparently did not record this. Dr. Mroczkowski prescribed bed rest, cold packs for two days, application of heat to the bruised areas, and advised plaintiff to return to light work on Tuesday, November 18th.

Plaintiff returned home and stayed in bed until Monday when he appeared in court to give testimony in traffic court. The next morning (Tuesday) he returned to work at the plant of his employer, Unit Drop Forge. At the time the accident occurred he was twenty-nine years eleven months of age, six feet two inches tall, and weighed in excess of 200 pounds. When plaintiff was twelve years old he had sustained a badly fractured lower right arm in an automobile accident which left him with a shorter right arm, an ability to straighten the right arm only 85 percent of normal, and two stiff fingers on the right hand. At the time of the accident plaintiff was working as an assistant hammerman at Unit Drop Forge, having held this position for 2 1/2 years. The plant had a number of mechanical hammers which forged red not pieces of steel into various shapes. Plaintiff worked as one of a crew of either three or four men, depending on the size of the hammer, which men were paid on an incentive or piece-rate basis. The incentive rate was a crew rate, and each individual crew member received a certain fraction of the crew earnings as a group. Plaintiff testified that before the accident his earnings averaged between $3 and $3.25 per hour and that his average earnings were $125 per week. Because of inability resulting from his injuries, plaintiff was unable to perform his regular job during the first month after the accident. Instead he was given a job as inspector, which paid $95 per week, so that during that first month after the accident plaintiff had a wage loss of $30 per week. Thereafter plaintiff resumed his work as an assistant hammerman, although for a while he selected the smaller hammers to work on. However, although plaintiff testified that his work on the smaller hammers paid less than work on the larger hammers, he testified to no wage loss other than that sustained the the first month while working as an inspector.

Dr. Mroczkowski saw plaintiff for the second time on Saturday, November 22, 1958. He then gave plaintiff an injection to hasten the absorption of blood in the bruised areas and prescribed deep heat treatments. Dr. Mroczkowski saw plaintiff frequently for a while after November 22, 1958. Plaintiff's chief complaint was pain in the left shoulder and left elbow. The shoulder trouble was diagnosed as left subdeltoid bursitis and the elbow trouble, as left lateral epicondylitis. These responded to treatment and cleared up. However, plaintiff continued to complain of pain in the left shoulder and on May 27, 1959, Dr. Mroczkowski referred plaintiff to Dr. Collopy, an orthopedic specialist. While Dr. Collopy did not testify, his written report to Dr. Mroczkowski, dated June 12, 1959, was read into the record. This report stated: Plaintiff's back and right side had cleared up; there was no atrophy of the left shoulder; and that the left shoulder condition, which was diagnosed at tendinitis, had improved some. Dr. Collopy recommended a continuance of the treatment given by Dr. Mroczkowski, i. e., deep heat treatments, and cortizone injections into the shoulder. Dr. Mroczkowski followed these directions, and continued cortizone injections for a while.

Plaintiff's visits to Dr. Mroczkowski declined markedly in 1960, and in 1961 plaintiff saw Dr. Mroczkowski but twice, the dates being May 24th and November 9th. On May 24, 1961, plaintiff's primary complaint was pain in the left shoulder upon motion. Dr. Mroczkowski testified that whatever plaintiff consulted him about on November 9, 1961, had cleared up. Dr. Mroczkowski last saw plaintiff shortly before trial on December 24, 1962. For the first time, Dr. Mroczkowski then discovered some flattening of the anterior portion of the left deltoid muscle which, he testified, indicated atrophy. He also observed a clicking over the region of the biceps tendon. While some range of motion of the left arm was normal, if this arm was flexed and turned outward plaintiff experienced several pain. When the arm was held in one particular position there was severe pain by pressing on the point of the long head biceps. Dr. Mroczkowski also found the right lower back tender and painful. He diagnosed the permanent residuals of the injury from the accident to consist of a left biceps tendinitis and a residual fibrositis of the right lower back in the lumber region. Dr. Mroczkowski made no estimate of any percentage of disability. Plaintiff himself testified that at time of trial his back no longer bothered him so much, there was no longer constant pain, but that if he should happen to grab hold of something 'just right' and make a twisting movement pain would be there. Plaintiff also testified, with respect to the tendinitis, that if he would make an unusual twisting...