Dittman v. Western Cas. & Sur. Co.

• Decision Date: 04 May 1954
• Parties: DITTMAN, v. WESTERN CAS. & SURETY CO.
• Court: Wisconsin Supreme Court

Page 436

64 N.W.2d 436

267 Wis. 42

DITTMAN, v. WESTERN CAS. & SURETY CO.

Supreme Court of Wisconsin.

May 4, 1954.

This is an action for damages for personal injuries sustained by the appellant Wilmer Dittman when the automobile that he was driving on September 8, 1951, in an easterly direction on a gravelled town road in St. Croix county was involved in an intersection collision with a 3/4 ton truck driven by Joseph Stefonek and insured by the respondent, Western Casualty and Surety Company, and which at the time was proceeding in a southerly direction on a town road that intersected the highway upon which Dittman was traveling. The case was tried to the court and a jury. By a special verdict the jury found that Stefonek had been causally negligent as to yielding the right of way. Dittman was exonerated by the jury of any negligence in the management and operation of his car. The jury also found that $4,700 would fairly compensate Dittman for his pecuniary loss and pain and suffering resulting from the collision. In the special verdict Dittman's property damage to his automobile was separately awarded at $211.06.

Subsequent to the hearing of motions after verdict the trial court by written order determined that the jury's award of $4,700 for Dittman's pecuniary loss and pain and suffering was excessive, and that the amount of $3,500 is the highest amount which a fair minded jury, properly instructed, would probably assess such damage. The court then directed that:

'The special verdict rendered in the * * * action be set aside on the grounds that the damages allowed by the jury are excessive and that a new trial be granted, limited to the question of damages only, unless within 20 days after the filing of this order * * * the defendant shall serve a written election upon the plaintiff or his attorney to permit judgment to be entered against it in the * * * action for the sum of $3711.06, damages, together with his costs and disbursements.'

The respondent chose to take a new trial on the item of damages.

It is from the court's order determining that the jury's award of damage for Dittman's pecuniary loss and pain and suffering was excessive and directing the option whereby respondent was permitted to pay a reduced amount, or in failing to do so, to take a new trial on damages only, that the plaintiff, Wilmer Dittman has appealed. The facts concerning the alleged injuries will be stated in the opinion.

W. W. Ward, New Richmond, Doar & Knowles, New Richmond, of counsel, for appellant.

Frank L. Morrow, Eau Claire, for respondent.

STEINLE, Justice.

Wilmer Dittman at the time of the accident was a farmer residing in the town of New Richmond, St. Croix county. He was 28 years of age and in good health except for being troubled with headaches occurring about once a month. He had planned his wedding for the night of Saturday, September 6, 1951, and on the morning of said day, just before the collision, was attending to errands in connection with the wedding. The Stefonek car struck Dittman's car hard on the left side near the rear door and drove it sideways for about 20 feet. Dittman was thrown from his car and lay in a ditch 30 feet away from his car immediately after the impact. He was unconscious for some minutes. He bled at the forehead near the eye brow. There was a large bump on the back of his head. Dr. Douglas Campbell, whose office at New Richmond was seven miles away from the scene of the accident, was called. Dittman was taken home and given some medicine by Dr. Campbell. The doctor suggested hospitalization but Dittman was unwilling to enter a hospital. Dittman rested during the balance of the day and started getting a headache that night. He was married at a church on the same night and he and his bride spent the wedding night at Stillwater, Minnesota and on the next day went to the Dittman farm where they stayed until Monday morning. Dittman noticed on Sunday morning that his back was bruised. He testified that it was, 'just as black as a chunk of coal.' On Monday he and his wife started on a honeymoon trip to Superior by auto. They were gone three days but shortened the time of their planned trip because Dittman felt sick and wanted to see Dr. Campbell. On Thursday he went to Dr. Campbell's office at New Richmond where he was examined and X-rays taken of his head and back. Dr. Campbell injected something in his back and taped it. Dittman did not go to a hospital although the doctor suggested it. Thereafter he went to Dr. Campbell's office on six different occasions, the last visit being October 26. The doctor prescribed pills and gave him some injections. Dr. Campbell died on November 12, 1951, as the result of a railroad accident. His associate, Dr. J. H. Armstrong, as well as other doctors in the same medical clinic, thereafter treated Dittman. X-rays were taken on November 26, 1951. Dittman saw Dr. Armstrong on three different visits thereafter up to January 11, 1952, and also saw that doctor seven times after that date and until the trial on September 17, 1953. Dittman each time complained of backache and headache and Dr. Armstrong gave him something for his headaches. In April 1953, at the suggestion of his attorney, Dittman started to keep a written record of his ailments. That record indicated periodic headaches and backaches, some dizziness and a feeling 'just like I am going to faint and got to hang onto something.' Dittman's complete medical expense was $100.50.

Dittman farmed 400 acres (half under cultivation) and milked 22 cows. His brother helped him with the work. His father, from whom he purchased the farm a short time before the collision, lived with him and helped to some extent. Dittman was not able to work from September 8, 1951, until after Christmas of that year. The farm laborer whom he had hired to help out while he was gone on his wedding trip stayed at $100 per month, room and board, for three months. Dittman lay around most of the time and instructed the other men what to do in regard to the farm work. He was able to work and did so from after Christmas until the next harvest season when he had to quit for two months because of his ailments. During that period he hired an extra farm hand and paid $125 per month for two months.

Dr. Armstrong at the trial testified that in his opinion Dittman suffered from post-traumatic headache--hemorrhagenic venous in the brain coverage or the distribution and circulation of the brain--, and that such condition resulted from injuries at the time of the accident. He was not able to state that such injuries would remain permanent. He said that he had never taped Dittman nor had he given him injections. He prescribed pills for the headaches. He also testified that Dittman's complaints regarding backache diminished as time went on. He stated that he could not find physical evidence to account for Dittman's continued complaints.

It appears that Dittman had also been examined on one occasion by a neurologist, Dr. Hammes, of St. Paul, at the recommendation of Dr. Armstrong. Dittman had also been sent by his attorney to Dr. Healey of New Richmond for an examination. Neither of said physicians were produced as witnesses at the trial. While Dr. Armstrong testified that in his opinion Dittman was not an individual whose symptoms would disappear once the law suit was over, he nevertheless said that the neurologist, Dr. Hammes, did not agree with him.

Dr. J. E. Newton of Hudson examined Dittman on the day before the trial and testified on behalf of the defendant. He stated that while Dittman complained of headaches and backaches the physical findings were negative and he could not account neurologically or otherwise for Dittman's complaints.

The court and jury had before it no competent evidence of permanent...