Kablitz v. Hoeft

• Decision Date: 24 November 1964
• Citation: 131 N.W.2d 346,25 Wis.2d 518
• Parties: Ervin P. KABLITZ, Respondent, v. Elmer HOEFT et al., Appellants.
• Court: Wisconsin Supreme Court

Page 346

131 N.W.2d 346

25 Wis.2d 518

Ervin P. KABLITZ, Respondent, v. Elmer HOEFT et al., Appellants.

Supreme Court of Wisconsin.

Nov. 24, 1964.

On October 18, 1961, respondent Kablitz was injured in an automobile accident in Waukesha county. The case was tried to a jury on December 5, 1963. Appellant Hoeft was found 100 percent causally negligent, and there is no appeal from this finding. Kablitz sustained several injuries and was awarded damages of $6,950 for past and future wage loss, and $3,000 for past and future pain and suffering, and disability. Hoeft and his insurer, Farmers Mutual Automobile Insurance Company, appeal from the judgment entered in accordance with the jury verdict.

Further facts will be stated in the opinion.

Lowry, Hunter & Tikalsky, James L. Steimel, Waukesha, for appellants.

Hippenmeyer & Reilly, Waukesha, for respondent.

WILKIE, Justice.

Four issues are raised on this appeal:

1. Did the court err in allowing an orthopedic surgeon engaged by the defendant insurance company to be called as an adverse witness by the plaintiff?

2. Did the court err in failing, as requested by the defendants, to instruct the jury that no damages could be awarded for plaintiff's osteomyelitis?

3. Were the damages awarded to plaintiff supported by the evidence?

4. Should a new trial be granted in the interest of justice?

Calling Defendant's Doctor Adversely

At the request of defendants' counsel, Dr. Alfred Kritter, an orthopedic surgeon, examined Kablitz, sent his report to those attorneys, and was then paid by Farmers Mutual. The trial court deemed him an agent of Farmers Mutual under sec. 325.14, Stats., ¹ and permitted respondent to call him adversely. This was error.

In holding that Dr. Kritter was an agent of the defendant insurance company the trial court stated:

'The term agent in general designates those employments where the persons exercising them are not under the immediate control of a superior. A person authorized by another to act on his account and under his control is an agent. An attorney under many circumstances may be the agent of his client. The independent contractor and agent are distinguished by the right of control the employer exercises. The employer here exercises exactly what type examination he desires, to whom copies shall be sent, the right to determine whether the doctor shall be called as a witness, and the right to engage or not engage the doctor again. The company has, of course, no right to determine the final conclusion of the doctor. A doctor who generally examines patients for an insurance company is, in the opinion of the Court, an agent of such company.'

It is well established that the most important factor in determining whether a person is an agent is the extent of the control retained over the details of the work. ² There was no proof here that Farmers Mutual reserved any right to control the details of the examination or exerted any influence over such examination. There is nothing in the record to indicate that Dr. Kritter was regularly engaged by Farmers Mutual to examine claimants. Thus, with respect to this examination Dr. Kritter was pursuing a distinct occupation or business (the practice of an orthopedic surgeon) apart from that of the person who engages the services insurance of liability growing out of automobile accidents). ³ He kept his own office and furnished his own instrumentalities of the examination. ⁴ He was an independent contractor and not an agent of the insurance company.

Respondent contends that unless he is able to call appellants' doctor adversely under sec. 325.14, Stats., the only way he will be able to learn the results of the examination is to call the doctor on direct and take the chances that go with making him his own witness. Respondent overlooks the fact that a discovery examination may be conducted of the doctor (even though not an agent) prior to trial under sec. 326.12, Stats. ⁵ and that the defendant may be compelled to supply the plaintiff with a copy of the doctor's report under the provisions of sec. 269.57, Stats.

Sec. 326.12, Stats., before the 1961 amendment, allowed the adverse examination before trial only of a party or of a person standing in certain specified relationships to a party, e.g., an agent of a party. ⁶ Sec. 325.14, Stats., was not changed at the same time and there is nothing to show that the legislature intended any change in the statute that required a person to be in one of the designated relationships to an adverse party, e.g., an agent, before he could be called adversely at the trial.

Sec. 326.12, Stats., as amended in 1961, was changed to conform with the federal rule on discovery before trial. ⁷ The federal rule corresponding to sec. 325.14, Stats., provides:

'A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.' ⁸

This rule permits the adverse examination on trial of an agent only if he is a special type of agent as therein defined, i. e., a managing agent.

Even though the court erred in finding Kritter an agent and in permitting him to be called adversely, such error, to warrant reversal must have been prejudicial to Farmers Mutual. ⁹ His testimony, which would be held against the defendant, concerned only the nature and extent of a knee injury, a matter not in dispute. Appellants were in no way prejudiced by any error committed in allowing Dr. Kritter to be called adversely.

Instruction as to Plaintiff's Osteomyelitis

Appellants requested the court to instruct the jury that no damages could be awarded for respondent's osteomyelitis because there was no evidence that this condition was affected in any manner by the collision. This request was denied and the jury was instructed that no damages could be awarded for this pre-existing condition unless it was 'brought into activity as a natural result of the injuries received in the collision.'

The osteomyelitis condition involving his right upper thighbone was originally caused by a gunshot wound received in 1935. Kablitz was hospitalized for about eight months at the time of the accident, and only worked part time from 1936 until 1940. The condition reoccurred in 1940 and Kablitz was once more hospitalized, this time for over half a year. In 1946 or 1947 the wound again began to drain but he was not hospitalized. The condition then remained dormant until two or three days after the accident, when Kablitz experienced symptoms and about three or four days later, the condition reoccurred. Dr. Raschbacher, the physician who attended respondent, testified that it was his opinion 'to a reasonable medical certainty that the fact that Mr. Kablitz was in this accident * * * was a cause of the flare up.' He testified on cross examination that if the symptoms arose three or four days after the accident, and the drainage started three or four days after that, he 'could not state to a reasonable medical certainty' that the accident reactivated the condition. Appellants contend that this testimony negates the opinion given on direct examination. His testimony is not inconsistent because the opinion elicited on cross examination is based on assumption rather than fact. Kablitz testified that the symptoms occurred two or three days after the collision, not three or four.

Appellants' witness, Dr. Kritter, testified that 'the overall course of osteomyelitis [would not] have been appreciably affected by any injuries received.' He then testified, however, that 'an injury such as this, if there was a good [pre-existing] pocket of pus, would accelerate the drainage.'

In Leusink v. O'Donnell ¹⁰ the court said:

'It is apparent from the record that the plaintiff, prior to the accident, had some disability in his left arm and left leg, resulting from some form of sclerosis. The medical reports in the record indicate that the plaintiff was suffering from a partial paralysis of the left arm and left leg after the accident. Plaintiff's disability, both before and after the accident, affected the same parts of his person and the same bodily functions. Therefore the extent to which his disabilities are attributable to the accident will be a question for the jury.'

The expert testimony boils down to one flat assertion that the collision reactivated the osteomyelitis and one opinion that the accident would have aggravated the condition only if drainage was about to occur anyway. Considering these opinions, in light of the respondent's testimony that the condition was completely dormant for fourteen years prior to the collision, arising again only shortly after the crash, there was sufficient evidence of causal relationship to necessitate the instruction given.

Damages

Appellants submit that the evidence does not support the damage awards of $6,950 for past and future wage loss, and $3,000 for past and future pain, and suffering, and disability. The amount of damages awarded is a matter resting largely in the discretion of the jury. The verdict will not be upset merely because the award was large or because the reviewing court would have awarded a lesser amount, but rather only where it is so excessive as to indicate that it resulted from passion, prejudice, or corruption, or a disregard of the evidence or applicable rules of law. ¹¹ Evidence must be viewed in the light most favorable to the verdict. ¹² A damage verdict which has been approved by the trial court will not be disturbed if 'there exists a reasonable basis for the trial court's determination after resolving any direct...