Coryell v. Conn
| Decision Date | 27 March 1979 |
| Docket Number | No. 76-224,76-224 |
| Citation | 88 Wis.2d 310,276 N.W.2d 723 |
| Parties | Charles D. CORYELL and Ruth Coryell, Respondents, v. William R. CONN and Wisconsin No-Fault Insurance Company, Inc., Appellants. |
| Court | Wisconsin Supreme Court |
William R. Conn and Wisconsin No-Fault Insurance Company, Inc., defendants- appellants, appeal from a judgment entered on a verdict which awarded damages to Charles D. Coryell and Ruth Coryell, his wife, plaintiffs-respondents, for injuries sustained in a two-car automobile accident.
James A. Johnson (argued), and Korth, Rodd, Sommer & Mouw, S. C., Rhinelander, on brief, for appellants.
William A. Melby (argued), and O'Melia, Melby, Smith & Schiek, S. C., Rhinelander, on brief, for respondents.
The accident occurred on November 2, 1974, at about 10 p. m. on Highway 8 near Rhinelander, Wisconsin. Conn was driving west on the highway when something happened to the steering mechanism on the automobile he was driving. The testimony is in conflict as to precisely what happened to the steering mechanism but it is undisputed that his car veered into the left traffic lane at a time when the Coryell vehicle was approaching from the west, or opposite direction.
Charles D. Coryell was driving the vehicle approaching from the east. His wife, Ruth, was a passenger in the front seat. Each driver saw the other car approaching. When Coryell saw the Conn automobile veering into his lane of travel, Coryell pulled his vehicle toward the side of the road and was nearly stopped when the Conn vehicle collided with it. Conn applied the brakes to the automobile he was driving when it started to veer into the left lane and the automobile left 74-foot skid marks before the impact. Conn was arrested for driving left of the centerline and pled guilty to the charge. There was some evidence that Conn had been drinking intoxicating beverages prior to the accident.
Both drivers were wearing seat belts and sustained only minor injuries. Ruth Coryell was not wearing a seat belt. She was thrown forward by the impact of the two vehicles and struck her chest and right knee on the dashboard. Mrs. Coryell sustained a fractured manubrium, the upper part of the sternum, and a soft tissue injury to the right knee. Because the fracture was the type that could not be put in a cast Mrs. Coryell was hospitalized for two weeks while it healed. She was in pain for much of that time. This fracture had completely healed and caused no pain at the time of trial. The knee injury continued to cause pain at the time of the trial, which was over a year and one-half after the accident.
The physician who treated Mrs. Coryell subsequent to her hospitalization testified that she had an osteo-arthritic condition that was aggravated by the knee injury. He said she had also had a clotting problem prior to the accident which could have been aggravated by the injury and therefore required anticoagulant therapy for a time. He said the knee injury resulted in a firm, pigmented subcutaneous depression about one by four inches just below the right knee which was a permanent condition but did not interfere with the knee joint. He further testified that on the basis of Mrs. Coryell's subjective complaints of pain she would have to limit her lifting, bending and standing; that some ultimate minimal improvement was probable but because the complaints of pain had persisted for about two years he thought the pain was permanent. He believed that her complaints of pain were legitimate. He reviewed her prior medical history which included a knee bruise, edema due to phlebitis, and continuous complaints of muscular pain and arthritic pain in the joints, particularly in the eight months immediately preceding the accident. It was his opinion that objectively her knee injury had completely healed with no limitation of motion but he was unable to dispute or calibrate her subjective complaints of pain. He admitted the pain could be attributed to her earlier leg problems but said that the pain appeared to be more localized to the right knee than her previous complaints.
Neither vehicle was driveable after the collision. An accident reconstruction engineer testified for the defense. He examined the Coryells' car in the salvage yard where it was taken after the accident. He testified that the seat belts were intact after the accident and in working condition. Based on tests he conducted with a model in an identical car, he concluded that if Mrs. Coryell had been wearing the seat belt her chest would not have struck the dash or windshield and her knee would not have struck the dash.
The defense introduced a photo taken shortly before the trial of the Coryells' car's dashboard. This photo showed a sticker which read "Safety belt use required in this vehicle." Mrs. Coryell denied that the sticker was in the car when they owned it. Mrs. Coryell, who was five foot four inches tall and weighed 175 pounds at the time of the accident admitted that the belt was working but said she did not wear it because it was tight and uncomfortable. She said she didn't know if it would go around her.
The jury found that the defendant, William R. Conn, was causally negligent, that Charles D. Coryell was not negligent in the manner in which he operated his automobile, and that Ruth Coryell was not negligent in failing to provide for her own safety. The jury awarded Ruth Coryell $15,000 in damages for her injuries, Charles D. Coryell $2,200 for medical expenses, $1,100 for loss of society and companionship, and $100 for his own injuries. Following motions after verdict judgment was entered on the verdict. This appeal follows and presents the following issues:
1. Is the $15,000 damage award supported by the evidence?
2. Was Mrs. Coryell negligent as a matter of law in failing to use her seat belt?
3. Did statements made by plaintiffs' counsel in his closing argument result in prejudice to defendant?
Appellants contend that the damage award is excessive because there was no evidence of permanency and because no evidence was introduced to assist the jury in separating the injury sustained in the accident from Mrs. Coryell's prior leg problems.
In reviewing a jury's award of damages this court must first determine if the record supports the various elements of a damage claim, such as bodily injury, pain and suffering and permanency. Where the trial court has sustained the verdict over a claim of excessiveness the question is whether there is any credible evidence that under any reasonable view supports the verdict and removes the issue from the realm of conjecture. To reverse this court must be able to say that there is such a complete failure of proof that the verdict must be based on speculation. Sabinasz v. Milwaukee & Suburban Tr. Corp., 71 Wis.2d 218, 222-226, 238 N.W.2d 99 (1976).
" 'In actions sounding in damages merely, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere. As shown elsewhere, a verdict may be set aside as excessive by the trial court or on appeal when, and not unless, it is so clearly excessive as to indicate that it was the result of passion, prejudice, or corruption, or it is clear that the jury disregarded the evidence or the rules of law. . . .
" " Bethke v. Duwe, 256 Wis. 378, 384, 385, 41 N.W.2d 277, 280 (1950).
The trial court here reviewed the medical evidence in light of appellants' challenge. The court concluded:
Where, as here, an injury is subjective and a layman cannot know if it will continue, expert medical testimony is necessary with regard to permanency and future pain and suffering. Diemel v. Weirich, 264 Wis. 265, 268, 58 N.W.2d 651 (1953).
". . . Only a medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue. . . ." Id. at 268, 58 N.W.2d at 652-653.
The trial court relied on Drexler v. All American Life & Casualty Co., 72 Wis.2d 420, 241 N.W.2d 401 (1976), even though acknowledging that Drexler involved a verdict based on current and past complaints of pain. Drexler is applicable here only for the limited purpose of allowing the jury to believe the plaintiff's past and present subjective complaints of pain without expert medical corroboration, and therefore has no effect on the substantive rule set forth in Diemel, supra, as to future pain and suffering.
The physician testified that because of the time lapse between the date of the...
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