Fantin v. Mahnke

• Decision Date: 25 April 1983
• Docket Number: No. 82-1134,82-1134
• Citation: 334 N.W.2d 564,113 Wis.2d 92
• Parties: Felix FANTIN, Plaintiff-Appellant, v. Joan M. MAHNKE and Badger State Mutual Casualty Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 564

334 N.W.2d 564

113 Wis.2d 92

Felix FANTIN, Plaintiff-Appellant, v. Joan M. MAHNKE and Badger State Mutual Casualty Company Defendants-Respondents.

No. 82-1134.

Court of Appeals of Wisconsin.

Submitted on Briefs March 11, 1983.

Opinion Released April 25, 1983.

Opinion Filed April 25, 1983.

Brennan & Collins, Milwaukee, for plaintiff-appellant; James P. Brennan, Milwaukee, of counsel.

Alan Shafrin, Milwaukee, for defendants-respondents.

Before WEDEMEYER, P.J., and DECKER and MOSER, JJ.

DECKER, Judge.

Felix Fantin appeals from a judgment granted in his favor after a jury trial which awarded him damages for an automobile accident in 1976. He contends that the trial court abused its discretion in refusing to allow a medical deposition to be read to the jury, that the verdict was perverse in failing to grant Fantin any damages for future pain and suffering, that the trial court should have found Fantin not negligent as a matter of law rather than submitting the question of his negligence to the jury, and that juror misconduct required a new trial. We are not persuaded by any of these arguments and accordingly affirm.

In the early afternoon of August 21, 1976, a car collision occurred at the intersection of 73rd and Morgan. The rear of a car driven by Joan Mahnke was struck by a car driven by Robert Haas as it was making a northbound left turn from Morgan on to 73rd Street. Fantin and his wife, Josephine, were in a car heading west on Morgan when the Mahnke vehicle was pushed by the impact into Fantin's traffic lane. Fantin did not stop in time and struck the Mahnke vehicle. Fantin and his wife were injured as a result of the collision.

At trial, the trial court refused to allow Fantin to have the deposition of Dr. Konstantine George read to the jury for the reason that it was cumulative to other medical testimony in evidence.

Testimony was given by a witness to the Fantin-Mahnke collision, Sally Iven, who stated that she heard the Haas-Mahnke collision, turned around to look, and saw Fantin's car 110-150 feet from the intersection. Fantin, on the other hand, testified that he did not see the Mahnke vehicle until it was five to ten feet in front of him.

Regarding Fantin's injuries, various testimony was taken. Dr. C. Hugh Hickey, who first examined Fantin four years after the accident, testified at Fantin's request that, in spite of Fantin's assertion that he had no hip or back trouble prior to the accident, Fantin was "on the road" to hip replacement with or without the accident. Regarding Fantin's arthritic back, Hickey testified that bridging and spurring of vertebrae existed as of 1972, four years before the accident.

Dr. Earl Krieg testified for the respondents that the arthritis in Fantin's back had been there since at least 1973, three years before the accident. He opined that the accident did not aggravate Fantin's preexisting hip disease and that all the back problems that Fantin attributed to the accident were not so attributable.

The jury returned a verdict in favor of Fantin awarding him $6,500 for pain and suffering to date, $1,000 for medical expenses, $1,000 for loss of consortium, but nothing for future pain, suffering, and disability.

After the jury returned its verdict, an informal off-the-record discussion with the jury, trial judge and trial counsel transpired. Immediately thereafter, Fantin's attorney moved for a mistrial on the basis that at least one juror made an unauthorized visit to the accident scene. The trial court reserved its ruling until motions after verdict, at which time it denied all motions. Fantin appeals.

First, Fantin argues that the trial court abused its discretion in refusing to allow Fantin's attorney to read the deposition of Dr. George to the jury. We find no abuse.

Section 904.03, Stats., allows a trial court to exclude relevant evidence if its probative value is outweighed by a consideration of the needless presentation of cumulative evidence. Such a determination was made here. Exclusion of evidence under sec. 904.03 is a question of trial court discretion. See Featherly v. Continental Insurance Co., 73 Wis.2d 273, 283, 243 N.W.2d 806, 814 (1976).

Our extensive review of the record shows no abuse of discretion. The deposition testimony of Dr. George is very similar to that of Dr. Hickey; both agreed that hip replacement surgery was necessary and both agreed that the arthritis preexisted the accident. Fantin's brief notes that some of Dr. Hickey's testimony "goes much further" than Dr. George's; insofar as that is true, we will find no error where the excluded evidence is subsumed by more comprehensive evidence. Fantin argues however, that "Dr. George felt that the automobile accident was a 'triggering' mechanism for the pain," which diagnosis differs substantially from Dr. Hickey's statement that the hip surgery was inevitable with or without the accident. We cannot agree with Fantin's characterization of Dr. George's testimony as being at odds with that of Dr. Hickey. ¹ We agree, therefore, with the trial court's exclusion of the deposition as cumulative, and hold that there was no abuse of discretion.

Next, Fantin argues that the verdict was perverse for failing to award him damages for future pain and suffering. We disagree.

Appellate review of jury findings is limited to whether the record contains any credible evidence that under any reasonable view supports the verdict and removes the issue from the realm of conjecture. Krueger v. Tappan Co., 104 Wis.2d 199, 201, 311 N.W.2d 219, 221 (Ct.App.1981). We must view the evidence in the light most favorable to the respondent and affirm if there is any credible evidence on which the jury could have based its decision, particularly where, as here, the verdict has the approval of the trial court. ² Id. The appellant has, therefore, a difficult task on appeal.

It is evident that both Fantin's hips and back troubled him. However, the testimony of both Dr. Hickey and Dr. Krieg indicated that Fantin's hip and back problems antedated the accident and, in Dr. Hickey's words, "Mr. Fantin was on the road to [disability] with or without the accident. I don't think Mr. Fantin would have been spared the condition that he was in at the time of these reports had there been no accident. I think he was on that road." Hickey further testified that the bridging and spurring of Fantin's vertebrae, which condition causes stiffness and pain, existed at least four years before the accident.

Although there was testimony that the accident aggravated preexistent conditions, we believe there was also sufficient evidence that Fantin's pain and disability would have been the same without the accident to justify the jury's finding of no damages for future pain and suffering.

Next, Fantin contends that the trial court erred in submitting the question of Fantin's negligence to the jury rather than finding that he was not negligent as a matter of law. We disagree.

The trial court took Fantin's request to be found not negligent as a matter of law as a request for a directed verdict. In determining whether a directed verdict should be granted, the evidence is viewed most favorably to the contention of the party against whom the verdict is sought to be directed. Thompson v. Howe, 77 Wis.2d 441, 448, 253 N.W.2d 59, 62 (1977). The test is whether there is any credible evidence which under a reasonable view would support a verdict contrary to that which is sought. Id.

Mrs. Sally Iven, who lived at the corner of 73rd and Morgan, was a witness to the Mahnke-Fantin collision. She testified that she was outside of her home when she heard the Haas-Mahnke collision which propelled the Mahnke vehicle into Fantin's traffic lane. Mrs. Iven turned around to see what had happened and saw the Fantin automobile between 110-150 feet east of the intersection. Fantin, however, testified that he did not see the Mahnke automobile until it was within five or ten feet of his car. This testimony clearly raises the issue of lookout with respect to Fantin. The operator of an automobile having the right of way on an arterial highway must still maintain a proper lookout. Leckwee v. Gibson, 90 Wis.2d 275, 287, 280 N.W.2d 186, 191 (1979).

We believe the testimony of Mrs. Iven and of Fantin himself was sufficient for Fantin's negligence to be a jury question and we reject as patently meritless Fantin's assertion in his brief that the testimony was "undisputed that Fantin saw the Mahnke automobile as soon as it could be seen to be entering on his highway."

Finally, Fantin urges us to grant him a new trial because a juror, during an interlude in deliberations of the jury, took an unauthorized view of the accident scene. That circumstance was disclosed during an informal post-verdict discussion of the case by the jury in the presence of the trial judge and trial counsel. It is undisputed that the view occurred and the juror expressed the opinion that the scene was not correctly represented upon the diagram of the area that was received in evidence.

Fantin's counsel never requested and the trial judge apparently did not conduct an inquiry into the unauthorized view. No transcript of such inquiry, if conducted, has been supplied, nor have we been supplied with a transcript of the trial judge's analysis of this issue. Thus, we have no additional facts available to us, nor do we have a means of resolving or analyzing the disputed contention of the respondents that the jurors asserted that the unauthorized view did not affect the jury's deliberations.

Most jurisdictions have adopted a well-settled rule that such an unauthorized juror view is not itself prejudicial in a civil case in the absence of a showing that it influenced or affected the verdict. The cases from other jurisdictions are collected and summarized in Annot., 11 ALR3d 918 (1967).

There is unvarying agreement in the cases...