Fouse v. Persons
| Citation | 80 Wis.2d 390,259 N.W.2d 92 |
| Decision Date | 01 November 1977 |
| Docket Number | No. 75-33,75-33 |
| Parties | Alvin FOUSE, Jr., and Sarah Fouse, his wife, Respondents, v. Norman A. PERSONS, and The Home Insurance Company, a Foreign Corporation, Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Plaintiffs-respondents Alvin Fouse, Jr., and Sarah Fouse, his wife, brought this action against defendants-appellants, Norman A. Persons and The Home Insurance Company, a foreign corporation, for personal injuries arising out of a collision between two trucks on October 23, 1972.
The plaintiff was driving a garbage truck and defendant was driving a dump truck with a trailer attached. Both vehicles were traveling in the same direction on Northwestern Avenue (Highway 38), approaching county trunk MM in Racine county. The garbage truck was in the left turn lane about to make a left turn. The dump truck was in the center lane. The garbage truck was traveling at a speed of approximately 10-20 miles per hour. The dump truck was traveling at a speed of approximately 25-35 miles per hour. At the intersection the light was green. The dump truck made a left turn from the center lane in front of the garbage truck. Its trailer hit the right front of the garbage truck, pushing the garbage truck onto a concrete island in the center of the highway and knocking over a stoplight anchored there. Both vehicles were driven from the scene of the accident. The jury attributed 75 percent of the causal negligence to the defendant dump truck driver, and 25 percent to the plaintiff garbage truck driver.
A major issue at trial was the extent of the plaintiff's injuries. The plaintiff did not complain of injuries at the scene of the accident. The defendant testified that the plaintiff "trotted over" to a nearby motel to call his supervisor and the police after the collision. The plaintiff testified that at the moment of impact he felt a pain in his tailbone and that not until that night did he begin to experience shoulder and back pains. The next day he consulted his family physician, Dr. Pinkus, who took x-rays and prescribed muscle relaxants and physiotherapy. The plaintiff testified that in the next several weeks his condition worsened. Dr. Pinkus recommended that he see a particular orthopedic surgeon, but instead he consulted a neurosurgeon, Dr. Goldstein, recommended by his mother. Dr. Goldstein diagnosed plaintiff's condition as a herniated thoracic disc and performed a thoracic laminectomy. At the time of trial the plaintiff still complained of intermittent back pain and leg weakness. He had not worked since the day of the accident. The plaintiff's neurosurgeon, Dr. Goldstein, testified that the plaintiff will permanently have intermittent pain, is now twenty-five percent permanently disabled and cannot resume his former job as a garbage collector because the heavy physical activity would risk paralysis. The plaintiff presented evidence of medical expenses in the amount of $5,400 up to the time of trial.
For the defense, two orthopedic surgeons, Dr. Coles and Dr. Collopy, disputed Dr. Goldstein's testimony. Dr. Coles testified that the disc defect appearing on the myelogram taken by Dr. Goldstein was "insignificant," and that the impact of the collision was too slight to rupture plaintiff's thoracic disc. In his opinion the plaintiff's injury was a temporary back strain and not a herniated disc. However, Dr. Coles testified that mainly as a result of the laminectomy the plaintiff now has a five percent permanent partial disability.
Dr. Collopy also testified that defendant's injury from the accident was a lumbar strain, not a herniated disc. He stated that plaintiff was ten percent permanently disabled, but that this disability resulted from the laminectomy and not the accident. The defense introduced films showing plaintiff mowing his lawn, starting a power mower, carrying a garbage can and lifting a stone.
The jury awarded plaintiff damages as follows: $1,750 for hospital and medical expenses; $275 for past and future pain and suffering; $1,250 for past lost earnings; $7,725 for future lost earnings; and $0 for loss of services, society and companionship to plaintiff's spouse.
The trial court granted the plaintiff's motion for a new trial because the damages were inadequate and in the interest of justice. The reasons given by the trial court, as set forth in a decision dated November 15, 1974, are that the jury failed to follow the court's instructions in its answers to the damages questions, that the verdict is inconsistent, that the damages awarded are inadequate, and that the verdict is perverse. On December 4, 1974, the trial court signed the order for a new trial from which the defendants take this appeal.
James P. Brennan and Simarski, Goodrich, Brennan & Stack, Milwaukee, on brief, for appellants.
Duane L. Arena, Racine, on brief, for respondents.
The trial court, as the statute authorizes, 1 set aside the jury verdict "in the interest of justice." As the statute requires, 2 the trial court stated its reasons for setting aside the verdict and granting a new trial as follows:
In setting aside a jury verdict and ordering a new trial, a trial court has to steer between Scylla and Charybdis. On the one hand, it is admonished that it "cannot simply substitute its judgment for that of the jury or find that a different jury might have reached a different result." 3 On the other hand, it is told that this power to order a new trial " 'is a power that should be courageously and fearlessly exercised whenever a trial judge is convinced that to enter judgment on a verdict returned would result in a miscarriage of justice.' " 4 In reviewing an order granting a new trial, we are "loath to interfere" 5 and do so "only in a clear case of an abuse of discretion." 6 We look "for reasons to sustain, and not to reverse, the trial court." 7 If only one of the several reasons given by the trial court for setting aside a jury verdict and ordering a new trial is sufficient, the trial court has not abused its discretion. 8
With these rules in mind, we begin by examining the trial court's holding that the jury's verdict in this case was perverse. Since a perverse verdict is one "which is clearly contrary to the evidence," a verdict of this nature cannot stand but must be set aside and a new trial granted. 9 Here the trial court found that the jury's verdict was perverse and that justice had miscarried because three of the jury's answers to the damages questions, when viewed either in themselves or together, were contrary to the evidence and to its instructions.
Although the plaintiff introduced evidence of medical and hospital expenses of $5,400, the jury awarded him only $1,750. The plaintiff's doctors testified the items contained in the $5,400 total were reasonable and necessary. The defendants adduced no testimony that the amounts were unreasonable, but instead challenged the necessity for the surgery, the cost of which was included in the total. The trial court found that even if the jury agreed with the defendants' theory of the case that the surgery was unnecessary, the damages awarded for medical and hospital expenses should have been only $393.91, the amount of expenses incurred up to the time of the surgery and, therefore, that the award of $1,750 was perverse.
However, the fault in the award may go deeper. The theory of the defense is that some of the damages resulted from mistaken medical treatment. The rule for awarding damages for injuries aggravated by subsequent mistaken medical treatment was established in Selleck v. Janesville 10 in 1898, and has been followed since. 11 Assuming that the plaintiff exercised good faith and due care in the selection of his treating physician, an assumption borne out by the record in this case, under the Selleck rule the defendants are liable for the full amount of damages caused by the aggravation. However, the plaintiff did not request a jury instruction regarding the defendants' liability for damages aggravated by malpractice or mistake 12 and has not challenged the instructions as given on appeal. We therefore confine our review to the fault found by the trial court and agree with the court below that the jury's award as to hospital and medical expenses has no rational relationship to the evidence presented concerning those expenses.
Like the award for hospital and medical expenses actually incurred, the award for loss of past earnings is susceptible of nearly exact computation. Such awards are more easily tested for perversity than awards for pain and suffering or awards for loss of future earnings. 13 In this case the jury's award compensated the plaintiff for thirty-eight days of work. At the time of trial the plaintiff had been off work for twenty-one months. The trial court noting this disparity found that: We do not find an abuse of discretion in the trial court's finding that the award made by the jury for loss of past wages was not supported by credible evidence.
The third basis for the trial court...
To continue reading
Request your trial
-
Lagerstrom v. Myrtle Werth Hosp.-Mayo Health Sys.
...to the latter instruction cites two post-Thoreson cases: Green v. Rosenow, 63 Wis. 2d 463, 217 N.W.2d 388 (1974), and Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977). In Green, the court said: "Where a medical bill may relate to two separate maladies, one having nothing to do with th......
-
Lievrouw v. Roth
...long as the plaintiff has "exercised good faith and due care" in selecting his or her treating physicians. See Fouse v. Persons, 80 Wis.2d 390, 397-398, 259 N.W.2d 92, 95 (1977). The trial court's instruction set matters right. It was not G. Second Medical Examination Roth and Classified al......
-
Hanson v. American Family Mut. Ins. Co.
...view, this instruction directly contradicted established law in Wisconsin, as detailed in such cases as Lievrouw and Fouse v. Persons, 80 Wis.2d 390, 259 N.W.2d 92 (1977). ¶ 16 Finally, the court of appeals concluded that there was a reasonable probability that the error in the jury instruc......
-
Voight v. Aetna Cas. & Sur. Co.
... ... 260.11(1), Stats.1973. That section provided in part: 2 ... " ... A plaintiff may join as defendants persons against whom the right to relief is alleged to exist in the alternative, although recovery against one may be inconsistent with recovery against the ... ...