Hardware Mut. Cas. Co. v. Harry Crow & Son, Inc.

• Citation: 94 N.W.2d 577,6 Wis.2d 396
• Parties: HARDWARE MUTUAL CAS. CO., an insurance corporation, et al., Respondents, v. HARRY CROW & SON, INC., et al., Appellants.
• Decision Date: 03 February 1959
• Court: Wisconsin Supreme Court

Page 577

94 N.W.2d 577

6 Wis.2d 396

HARDWARE MUTUAL CAS. CO., an insurance corporation, et al Respondents, v. HARRY CROW & SON, INC., et al., Appellants.

Supreme Court of Wisconsin.

Feb. 3, 1959.

Heft & Coates, Racine, for appellants.

Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, for respondents.

FAIRCHILD, Justice.

Defendants assert that the record will not sustain the jury finding that Orr was negligent, that the damage awards were excessive, and that there were several prejudicial errors upon the trial. Upon our review of the record, we reach the conclusion that defendants' challenges are not well founded and that the judgment is to be affirmed.

1. Findings of negligence. It was conceded that Huber never saw the truck. The jury found that his failure to see it was negligence as to lookout and attributed 15 per cent of the total negligence to him. Orr testified that he saw Huber at all material times and the circuit court declined to submit any question as to lack of lookout on Orr's part, although in its opinion on motions after verdict, the court indicated some misgivings about not having submitted that issue. As we understand Orr's claim, it was that Huber would not have been hit by the truck except for a sudden movement backward into its path and that this unanticipated movement occurred when the truck was so close to Huber that there was insufficient time or space in which to stop the truck or divert it before it struck Huber. The claim of Huber as we understand it was that he was standing still or, if moving at all, was moving forward which would be away from danger from the truck. It would follow that if Huber was at all times at least as much in the path of the truck as he was when he was struck, Orr's version is not correct and Orr must have continued to back the truck toward Huber in reliance upon Huber's stepping out of danger. The location of the accident was not a highway but a place where both the electricians and Orr were engaged in the work which they were called upon to perform. It seems to us as it did to the circuit court that the evidence presented a jury question as to Orr's negligence with respect to management and control.

2. The award of $7,500 for personal injuries. Huber described the pain while the wheel of the truck was upon his leg as the most terrific pain in his life. No bone was fractured in his leg, but he described it as smashed flat and just about the thickness to his two hands. His left arm was broken at the elbow. He was in the hospital eleven days and there was a cast on his left elbow for three weeks. Tread marks of the truck tire were imbedded in his leg for about two and one-half months. His leg remained discolored until after March 1, 1956. As will appear elsewhere, he was unable to perform his normal work. Up to the time of trial, February 6, 1958, his right leg would swell after he had worked about six hours and it would ache. His left elbow still gave him trouble in some positions. Sharp pain would shoot up his arm when turned and it was not as strong as it had been nor as strong as the other arm. His doctor was of the opinion that Huber had a 5 per cent permanent disability at his left elbow. The doctor also gave the opinion that if Huber's testimony as to swelling and soreness is true, such swelling and soreness were the result of the accident. The trial judge who observed Huber and heard the testimony was of the opinion that the allowance of $7,500 'may be high but it is not excessive and it does not show prejudice.' The judge commented in his decision that Huber must have suffered agony while the heavily loaded truck backed onto his leg and remained there for approximately a minute. The trial judge reasoned that in view of the pain and suffering and the agony of the accident itself, $5,000 would not be excessive for the leg injury and $2,500 would not be excessive for the permanent disability in the elbow. We are not prepared to say that the award is excessive, it having been approved by the trial judge.

3. Impairment of earning capacity. Huber returned to work for his employer, Magaw Electric Company, August 29, 1955. His doctor requested that he be given lighter work. He did not do his regular work, but swept floors and did cleaning. He was unable to climb ladders or support heavy things in his hands and both those abilities were needed in his work as an electrician on construction jobs. He was laid off by Magaw at Kenosha on November 8th. He worked for the same company at Racine from November 15th to December 6th. He was unable to climb or lift and was again laid off. Shortly before Christmas 1955 he began to work as a maintenance electrician at Nash and continued in that job until about March 1st. He then left because he was transferred to the midnight shift and this job would involve doing 'changeover light construction' for a part of the shift. He testified that he was not then able to do the same kind of work he had been doing before the injury because he couldn't climb and couldn't lift. He then worked as a clerk in a store until September 20, 1957 when he began to work again as a construction electrician.

Huber had worked for Magaw for five weeks prior to his injury. His base pay without overtime was $123 a week, but in most of those weeks there had been enough overtime so that his compensation during those weeks averaged $149.13. His compensation at Magaw after returning to work averaged $109.50 and his average compensation during all the weeks he worked for Magaw both before and after the injury was $121 per week. His average earnings at Nash were approximately $129 per week. If Huber's average earnings at Magaw ($149) for the five weeks prior to injury were accepted as a measure of his earning capacity prior to injury, the difference between his actual earnings after the injury and until September 1957 and the amount he could have earned would be approximately $8,500. On the other hand, if defendant's contention were accepted, the measure of Huber's earning capacity would be $121 per week and the total difference up to September 1957 would be approximately $6,000. Either calculation would sustain the $4,000 awarded by the jury.

Defendants also claim that it was not shown that Huber's injury prevented him from continuing to earn $129 per week at Nash rather than the $65 or $75 he earned as a clerk in a store. Huber testified that in order to continue at Nash, he would have been required to do 'changeover light construction' and that he was then unable to do his regular work because he couldn't climb and couldn't lift. It is not crystal clear that his testimony meant that he was unable to perform the light construction work, but neither defense nor plaintiffs' counsel asked for more specific testimony. In view of the testimony as to the difficulties Huber was still having with his leg and arm and the fact that Huber took a severe reduction in income in changing to a clerk's job, we think the jury could legitimately conclude that Huber left Nash because of disability rather than a personal choice not to work the midnight shift.

4. Submission of a question on emergency. Defendants requested that the special verdict include a question inquiring whether Orr was confronted by an emergency not brought about by his own negligence. The trial court declined to submit this question, but in its instructions did call attention to Orr's claim that he was confronted by an emergency when Huber suddenly stepped backwards and set forth the emergency rule. In effect the emergency rule defines a standard of due care which the jury is to apply to the conduct of an actor who is confronted by an emergency not brought about by his own negligence. A jury's determination that such an emergency occurred is but an intermediate step in determining whether the actor was negligent. We can see no reason why defendants were entitled to the submission of a separate question on the intermediate step. They do not claim any inadequacy in the instruction give nor in the question submitted as to Orr's negligence.

5. Instruction on federal income tax. Defendants requested that the jury be instructed that when it had arrived at the amount of its verdict, it should not add any sum of money to that amount for federal income taxes and that as a matter of law the amount awarded to the plaintiff by the verdict is exempt from federal taxation. The trial court declined to give the instruction and on motions after verdict stated in its opinion that in any event the omission of such instruction would be within the discretion of the trial judge and that refusal of it was not prejudicial error.

Defendants' argument appears to have two branches, one with respect to the award for the aspects of the injury other than earning capacity, and a second with respect to the award for past impairment of earning capacity. We will discuss them separately.

(a) Award for personal injury. Defendants argue that a jury may conclude that a plaintiff should receive a certain amount, may believe (erroneously) that plaintiff will be required to include the...