Ianni v. Grain Dealers Mut. Ins. Co.

• Decision Date: 04 April 1969
• Docket Number: Nos. 178,179,s. 178
• Citation: 166 N.W.2d 148,42 Wis.2d 354
• Parties: Patricia IANNI, a minor, by David L. Phillips, her gdn. ad litem, et al., Respondents, v. GRAIN DEALERS MUTUAL INS. CO., Appellant, Dairyland Ins. Co., a corp., Defendant. Isabel IANNI, Respondent, v. GRAIN DEALERS MUTUAL INS. CO., Appellant, Dairyland Ins. Co., a corp., Defendant.
• Court: Wisconsin Supreme Court

Page 148

166 N.W.2d 148

42 Wis.2d 354

Patricia IANNI, a minor, by David L. Phillips, her gdn. ad

litem, et al., Respondents, v. GRAIN DEALERS MUTUAL INS. CO., Appellant, Dairyland Ins. Co., a corp., Defendant.

Isabel IANNI, Respondent, v. GRAIN DEALERS MUTUAL INS. CO., Appellant, Dairyland Ins. Co., a corp., Defendant.

Nos. 178, 179.

Supreme Court of Wisconsin.

April 4, 1969.

Heide, Sheldon, Hartley & Thom, Kenosha, for appellant.

Phillips & Richards, Kenosha, for respondents.

ROBERT W. HANSEN, Justice.

The insurer of the Ianni car brings this appeal challenging the finding of negligence as to its insured and challenging both the basis for and amount of damages awarded to the two passengers in the Ianni car.

The only eyewitness testimony is that of Isabel Ianni. Without her testimony there is nothing in this record to support a finding of negligence as to the driver Walter Ianni. The accident reconstruction expert who testified concluded that at impact both cars were entirely in the northbound or Ianni lane; both cars had turned slightly to their right just prior to impact; there was no evidence of skid marks; in his opinion the Ianni automobile was travelling at 50--55 m.p.h. at impact, the Larson automobile travelling at 45--50 m.p.h.

The claim of negligence against driver Ianni is based on the witness-stand testimony of his surviving wife, Isabel. She testified the Ianni car was travelling at 70 m.p.h., and that the Ianni car was travelling down the center of the road. On the witness stand, she recalled seeing the headlights of an oncoming car just prior to the accident, recalled no acceleration or deceleration of the Ianni car after seeing the Larson car, did recall her husband turning the wheel to the right just prior to impact.

The attack upon the credibility of her testimony is based upon prior inconsistent statements made by her. Six days after the accident, at the hospital she made and signed a statement that she did not see any part of the accident because she was asleep and that she did not know how fast her husband was travelling. About nine months after the accident, she signed a proof-of-loss statement for accidental death benefits under the Grain Dealers insurance policy in which she stated that the Larson vehicle crossed the center line and collided with the Ianni car. Prior to trial, at an adverse examination, she testified that it took from 15 to 20 minutes for the Ianni car to travel from Ellsworth to the scene of the accident.

Contrary to earlier statements made by her, the courtroom testimony of Isabel Ianni did two things; it moved the Ianni car to the center of the highway and increased its speed to 70 m.p.h. This testimony provided support, the only support, for a jury finding that Walter Ianni was negligent in driving at a speed in excess of the posted limits (sec. 346.57(5), stats.) and in failing to travel at an appropriate reduced speed (sec. 346.57(3), stats.). While appellant disagrees, it also provided the underpinning for a jury finding of negligence in failing to drive on the right side of the roadway (sec. 346.05(1), stats.). If a motorist driving in the center of a road meets an oncoming vehicle, he must turn seasonably to the right, and it is clearly a jury question as whether such turning was in fact seasonable.

Hinting strongly at the retailoring of testimony to fit the requirements of a case against the Ianni insurer, Grain Dealers urges this court to find the witness stand testimony of Isabel Ianni incredible and unworthy of belief. Reliance is upon the general rule of law that: 'Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting with no explanation of the contradiction, and no other fact or circumstance in the case tends to show which version of the evidence is true, no case is made * * *.' (32A C.J.S. Evidence § 1043, p. 823.) Where the conflict and contradictions are within the body of the testimony given, the 'no case' conclusion follows. Where the conflict or contradiction arises by reason of an earlier statement given by the witness, it is for the jury to determine the question of the weight and credence to be given the witness-stand testimony and prior extra-judicial statement. In a recent case involving an unexplained conflict between the courtroom testimony of a witness and a prior statement made by him, this court stated:

'During the trial Rickert denied unequivocally that his car slid or slued at any time prior to the accident. To impeach Rickert, Hamlin's attorney presented a signed statement given just after the accident by Rickert to Ronald Helland, the Price county traffic officer, in which statement Rickert said his car slued. The weight to be given to the statement as against Rickert's testimony at the trial was for the jury to decide.' Bach v. Liberty Mutual Fire Ins. Co. (1967), 36 Wis.2d 72, 78, 152 N.W.2d 911, 914. (Emphasis supplied.)

The jury may elect to believe the witness-stand account of what happened, and disregard the earlier inconsistent statement of the witness. The jury may choose to believe the truthfulness of the earlier statement, and discount entirely the account presented from the witness stand. The jury may conclude that the inconsistencies revealed in trial and pre-trial statements of a witness completely erode his credibility, and give no weight to either statement. To the contention that this gives to the jury a power to pick and choose between conflicting statements, the answer is that such authority is at least in the hands of those who have the opportunity to observe the witness, his demeanor, manner of testifying, hesitancies and similar nuances in speaking. An appellate court has only the cold, hard type of a printed record before it, and is in a poorer position to determine which statement has the ring of truth or whether all statements are to be considered counterfeit.

In dealing with appellant's challenge to the legal basis and amounts awarded in the area of damages, we acknowledge some difficulties arising from the submission of the damage issue on a single question rather than on itemized questions. It is no generalized criticism of the use of single damage questions to observe that by definition they are a combination of unmeasured ingredients. It is possible to determine what ingredients went into the stewpot, but not how much of any one ingredient was added or is present. Where such single question as to damages is submitted to the jury, it becomes vitally important that the instructions to the jury give guidelines for deciding how much may be added of a particular ingredient, as well as whether it can be added at all.

Appellant contends that the record does not establish a proper basis for the award of damages to Patricia Ianni for future pain and suffering and for loss of future earning capacity.

As to future pain and suffering, the rule in this state is that a non-medical witness is incompetnet to express an opinion as to how long pain will be projected into the future where the future consequences of the injury cannot be objectively determined, Rivera v. Wollin (1966), 30 Wis.2d 305, 309, 140 N.W.2d 748, and that:

'Only a medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue. In the absence of such expert testimony * * * the jury should be instructed that no damages may be allowed for future pain and suffering.' Diemel v. Weirich (1953), 264 Wis. 265, 58 N.W.2d 651.

The only medical expert testimony as to future pain and suffering of Patricia is that of her treating physician who testified:

'I had to tell her that I felt that probably in years to come she may have some discomfort in the area of the low back * * * I can't prove this is going to happen. I felt I had to tell the patient this may occur.'

Is this a statement to a medical certainty that future pain and suffering is probable, not just possible? The question is close, but we hold that it falls short of an opinion to a medical probability. It is true that the word 'probably' is used but it is diluted by subsequent uses of the word 'may' and by the unclarified reference only to 'discomfort.' Taking the doctor's statement as a whole, we cannot find it to be a certification to a medical probability of future pain and suffering. For a general discussion of the question of testimony to a medical certainty, see State v. Muhammad (1968), 41 Wis.2d 12, 24, 162 N.W.2d 567, and cases cited.

On the challenge to the medical expert foundation laid for a jury grant of damages for loss of future earning capacity on the part of Patricia, the deficiency seems more evident. Here the only evidence of permanent injury involved injury to the sacroiliac joint. The testimony of the medical expert, the treating physician, linked this only with possible childbearing difficulties in the future. We find in the record no testimony to a medical certainty linking the injury to the sacroiliac joint with a loss of earning capacity in the future. Nor do we find a basis for presuming that such future loss of earning capacity will occur. On the record as here established, there was no basis for submitting this element of damages to the jury.

It is true that...