Jorgenson v. Hillestad

• Decision Date: 10 June 1947
• Citation: 250 Wis. 592,27 N.W.2d 709
• Parties: JORGENSON v. HILLESTAD et al. (TRAVELERS INS. CO., Intervener).
• Court: Wisconsin Supreme Court

250 Wis. 592

27 N.W.2d 709

JORGENSON

v.HILLESTAD et al. (TRAVELERS INS. CO., Intervener).

Supreme Court of Wisconsin.

June 10, 1947.

Appeal from a judgment of the Circuit Court for Eau Claire County; Clarence E. Rinehart, Judge.

Affirmed.

Action brought by William King against the defendants, Alfred Hillestad and his automobile liability insurer, to recover damages for injury to King caused by negligence of Hillestad in operating his automobile, which collided with a cab in which King was riding. On the trial of the issues, the only question submitted to the jury was the amount of King's damages, which the jury then assessed at $5,000. Subsequent to the entry of judgment for his recovery of that amount, defendants appealed from the judgment, and upon King's death, Elvira N. Jorgenson, executrix of his estate, was substituted as the respondent herein.

E. B. Bundy, of Eau Claire, for appellants.

Wilcox, Wilcox & Sullivan, of Eau Claire, for respondent.

FRITZ, Justice.

The principal question on this appeal is whether the proof sustains the jury's award of $5,000 as King's damages for injuries sustained by him as the result of Hillestad's negligence in operating his automobile on June 28, 1945; and whether that award was warranted by the proof depends on whether there was sufficient competent, credible evidence from which the jury could find that the injuries then sustained by King as the result of Hillestad's negligence were the cause of a heart attack which King had on August 15, 1945, by reason of a coronary occlusion.

It appears without dispute that as the result of the collision between Hillestad's car and the cab in which King was riding, the cab rolled over on its top which caved in, and King was crushed in the cab. A police officer who was at the scene of the accident testified that King there complained of having pain in his chest and back. Plaintiff testified that he felt a rib puncturing his lung; that in the left side of his chest he felt pain, which was constant and hurt when he breathed; that he was black and blue and ached all over the side of his chest; and that he was removed from the car and taken to a hospital where a cut on his thumb, which was badly lacerated, was dressed, and a fracture of the distal joint of the thumb was treated. After an hour he went to the office of his employer and then home and into bed. He had pains in his chest and could not get breath, and this lasted all day and night. Three days later he went to the doctor to see about the pains in his chest, and went back to him four times about his chest. In July, to find out what was wrong with his chest, he went to a different doctor, Dr. Werner, who told him he could not find anything wrong with the chest. Plaintiff had to lay off from work about seven days because he had pain in his chest, which was worse some times than others. When he exerted himself he would get that pain which made him short-winded and hard for him to breathe.

On August 15, 1945, King three times called Dr. Werner to treat him and who told him to go to the hospital. There an electrocardiogram was taken and King was told his heart was in bad shape. Since August 15, 1945, King did not do any work for anybody. If he worked he got a pain and was short of breath and all in, and the pain in the region of his chest started six or eight inches below the left shoulder and went up to the shoulder and down the left arm. After King was advised he had heart trouble he consulted Drs. Nimz and Murphy at Milwaukee, whom he had consulted in February 1945. At that time he was not having any pains in his chest. Between June 28, 1945, and Dr. Werner's diagnosis on August 15, 1945, nothing had happened to King outside of his ordinary course of living to cause any change in his condition.

Dr. Nimz testified that before the accident he had examined King on February 24, 1945, and an electrocardiogram was taken and was found to be essentially normal; that he saw King again on September 15, 1945, who then complained of pain over the precordium in the chest, which was radiating down to the abdomen, and of shortness of breath on exertion; that King gave a history of having been in an automobile accident on June 28, 1945, and immediately following the accident he had noticed a pain in the region of the heart, and that he had broken out into a cold sweat and felt weak and faint and was short of breath; that Nimz then took another electrocardiogram which revealed that there had been damage to the heart muscle, and showed evidence of damage thereto, while the earlier cardiogram did not. Dr. Nimz testified it was his conclusion that the fact that King had a normal cardiogram on February 24, 1945, in connection with the history of his having been in an automobile accident, indicated there was some damage to the heart caused by the accident and that he had had a non-puncturing injury-in other words a contusion in the area of the chest overlying the heart-and that it was Dr. Nimz' theory that some outside blow damaged King's heart muscle at the time of the accident; and that in his opinion, based upon examinations of King, he was suffering from a myocardial damage in the front wall of the heart, which was caused by the blow or contusion to his chest in the accident on June 28, 1945. Dr. Nimz testified also that, in view of the condition of King revealed on February 24, 1945, the condition which Dr. Nimz found on September 15, 1945, could not be caused by mental disturbance, temporary exertion or disease; and that the type of symptoms shown in the electrocardiogram was myocardial damage, the cause of which was directly related to the history of an accident and was easily distinguishable from heart enlargement or any other type of damage to the heart.

Dr. Dawson, called by plaintiff as an expert witness, testified:...