Diemel v. Weirich

• Decision Date: 02 June 1953
• Citation: 264 Wis. 265,58 N.W.2d 651
• Parties: DIEMEL et al. v. WEIRICH et al.
• Court: Wisconsin Supreme Court

Page 651

58 N.W.2d 651

264 Wis. 265

DIEMEL et al. v.WEIRICH et al.

Supreme Court of Wisconsin.

June 2, 1953.

Schmitt & Gullickson, August G. Eckhardt, Merrill, for appellant.

O'Melia & Kaye, Rhinelander, John F. O'Melia, Rhinelander, of counsel, for respondents.

CURRIE, Justice.

This appeal raises the issue of whether it was error for the trial court to refuse to instruct the jury that they could award no damages for future pain and suffering, as requested by counsel for appellants, and in instructing the jury in effect that it might award damages for future pain and suffering, but not for permanent disability.The appellant contends that this constituted error because of the absence of any medical testimony to substantiate plaintiff's claim, based on her own testimony of purely subjective symptoms, that she would have future pain and suffering as a result of her injuries received in the accident.

This court in Landrath v. Allstate Ins. Co., 1951, 259 Wis. 248, at page 257, 48 N.W.2d 485, 489, stated:

'In that case[Wenneman v. Royal Indemnity Co., 1947, 251 Wis. 630, 30 N.W.2d 250], upon a review of the record, the court was compelled to conclude that the evidence did not admit of the jury's award as damages for plaintiff's pain and suffering caused by an accident, and it was there ruled in effect that the award allowed could be warranted only where sufficient evidence other than the unsupported subjective statements of plaintiff existed.'

The foregoing quotation again received our express approval in the recent case of Karsten v. Meis, 1953, 263 Wis. 307, 57 N.W.2d 360.

The general rule followed in other jurisdictions as well as Wisconsin, is well stated in 20 Am.Jur., Evidence, p. 649, sec. 778, as follows:

'* * * where the injury is subjective in character and of such nature that a layman cannot with reasonable certainty know whether or not there will be future pain and suffering, the courts generally require the introduction of competent expert opinion testimony bearing upon the permanency of such injury or the likelihood that the injured person will endure future pain and suffering before allowing recovery therefor.'

We believe that sound public policy requires adherence to such rule.It is a rare personal injury case indeed in which the injured party at time of trial does not claim to have some residual pain from the accident.Not being a medical expert, such witness is incompetent to express an opinion as to how long such pain is...