Goelz v. Knoblauch
| Decision Date | 12 January 1943 |
| Citation | 7 N.W.2d 420,242 Wis. 186 |
| Parties | GOELZ v. KNOBLAUCH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Judge.
Action by John A. Goelz, administrator of the estate of Mary Goelz, deceased, against Walter G. Knoblauch for damages resulting from fracture of left femur of the deceased. From an order granting a new trial defendant appeals. [By Editorial Staff.]
Reversed.
Action commenced March 11, 1938, by John A. Goelz as administrator of the estate of his mother, Mary Goelz, deceased, plaintiff, against Walter G. Knoblauch, defendant, for damages resulting from the fracture of the left femur of the deceased Mary Goelz on December 16, 1936, alleged to have been caused by the negligence of the defendant, who is a chiropractor, while treating Mary Goelz as a patient.
The complaint alleges two causes of action. The first cause of action is brought by plaintiff as the personal representative of the deceased, for and on behalf of her estate, and for and on behalf of Gustav Goelz, surviving husband, pursuant to sec. 331.04, Wis.Stats.
Defendant is a licensed chiropractor. It is alleged that on the 20th day of April, 1936, Mary Goelz, deceased, and her husband Gustav Goelz engaged the services of defendant for the purpose of treating said Mary Goelz for a physical ailment and malady which she then suffered; that defendant, for compensation to be paid therefor, undertook to administer treatment to said Mary Goelz and did actually treat her for several months; that on or about the 16th day of December, 1936, while administering a treatment to said Mary Goelz at her home, defendant,
In the second cause of action, in addition to realleging pertinent paragraphs of the first cause of action, it is alleged “that the said Mary Goelz left her surviving her husband, Gustav Goelz, to whom she had been married for approximately forty-seven years; that said Gustav Goelz was greatly attached to the said Mary Goelz, deceased, and has suffered greatly from the loss of her society and companionship and has been obliged to expend large sums of money for the medical care and treatment of said deceased resulting after her injuries and for her burial, all to his damage, * * *”.
Case was tried to the court and jury. The first five questions of the special verdict were so framed as to cover defendant's alleged negligence and causation. Those questions are as follows: (1) Was the left femur of the deceased, Mrs. Mary Goelz, fractured at the time of her treatment by the defendant Walter G. Knoblauch on December 16, 1936? The jury unanimously answered this question in the negative. (2) If you answer the first question “Yes,” then was said defendant negligent in failing to discover that said left femur had been rarified and diseased at said time? Eleven jurors answered this question in the negative with one juror dissenting. (3) If you answer the second question “Yes,” then was defendant's failure to discover that said left femur was rarified and diseased an efficient cause of said fracture? The jury unanimously answered this question in the negative. (4) If you answer the first question “Yes,” then was defendant negligent in the treatment of said deceased, Mrs. Mary Goelz, by flexing and rotating her left leg on December 16, 1936? This question was unanimously answered in the negative. (5) If you answer the fourth question “Yes,” then was the defendant's negligence in giving Mrs. Goelz said treatment an efficient cause of said fracture? This question was unanimously answered in the negative.
The remaining questions of the special verdict covered different elements of damages and were preceded by the statement: “If the court should be of the opinion that the plaintiff is entitled to recover judgment what sum will compensate for”: (a) hospital expenses incurred for the treatment of Mrs. Mary Goelz, deceased? (b) the medical expenses incurred for the treatment of Mrs. Mary Goelz, deceased? (c) funeral expenses for the interment of Mrs. Mary Goelz? (d) pain and suffering endured by Mrs. Mary Goelz as a natural result of the fracture of her left femur? (e) pecuniary injury sustained by Mr. Gustav Goelz as a result of the fracture of the left femur of Mrs. Mary Goelz? (f) Mr. Gustav Goelz for the loss of society and companionship of his wife, Mrs. Mary Goelz, resulting from the fracture of her left femur? As to all subdivisions indicated above the jury unanimously answered, “Nothing.”
It will be noted that the phraseology of the first five questions was such that if the first question was answered in the negative, the second, third, fourth, and fifth questions need not have been answered. In reference to the sixth question and the several subdivisions thereof the court instructed as follows:
The court then made reference to subdivisions (a), (b), (c), (d), (e), and (f), explaining the elements or items covered by the several subdivisions of question 6. After verdict, plaintiff moved as follows: (1) For judgment in favor of plaintiff in the amount specified (in his motion) notwithstanding the special verdict; (2) that in the event of the denial of the foregoing that the answers of the jury to questions 1, 2, 3, 4, and 5 be changed from “No” to “Yes”; that the answers of the jury to question No. 6, including subdivisions (a), (b), (c), (d), (e) and (f) be changed from “Nothing” to the following answers, to-wit: (a) $937.30; (b) $595; (c) $429.92; (d) $10,000; (e) $5,000; (f) $2,500; and upon the verdict as so changed and corrected that judgment be entered in favor of the plaintiff; (3) that in the event of the denial of the foregoing motions the court set aside the verdict and grant a new trial upon the following grounds: Error of the court in the admission and rejection of evidence; error in instructions and refusing to instruct; error because of alleged improper remarks of defendant's counsel at the time of the trial and in his argument to the jury; because the verdict is contrary to law and the evidence; and because a new trial is necessary in the interests of justice.
Defendant moved for judgment upon the verdict, dismissing the action. The court denied plaintiff's alternative motions, also defendant's motion, and granted a new trial in the interests of justice. From an order accordingly entered on the 25th day of February, 1942, defendant appeals. Further material facts will be stated in the opinion.
Walter C. Knoblauch, of Milwaukee, and Otto Bosshard, of La Crosse, for appellant.
Walter Schinz, Jr., and Herbert R. Manger, both of Milwaukee, for respondent.
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