Kincannon v. National Indem. Co.
| Citation | 92 N.W.2d 884,5 Wis.2d 231 |
| Parties | Leo KINCANNON, Respondent, v. NATIONAL INDEMNITY CO. et al., Appellants. |
| Decision Date | 05 November 1958 |
| Court | Wisconsin Supreme Court |
Arnold, Philipp & Murray, Milwaukee, for appellants.
Ray T. McCann, Milwaukee, for respondent.
We find no error, and therefore the judgment will be affirmed.
1. Damages not excessive. In considering whether the jury's appraisal of damages for pain, suffering and disability is excessive, we must of course view the evidence in the light most favorable to plaintiff.
There was evidence from which the jury could reasonably believe that plaintiff suffered severe pain for a considerable period of time. Plaintiff testified that during the period he was at home after the accident he was in tremendous pain practically all over, was black and blue on both arms and one shoulder, felt as though his insides were torn apart, and had a headache--a kind of warped, twisted feeling just inside the head--'a distressing pressure sort of thing' like a person might have with a wedge driven between his teeth; and that at the time of trial he still had occasional sharp pains in his head, different from the migraine headaches he had had before the accident. His wife testified that while he was at home he had so much pain he was more comfortable in a reclining chair. Dr. Eisenberg, who saw plaintiff some twenty-six times after the accident, testified that he complained of intense headaches and pains in the front chest wall area and shoulder and buzzing in his head and difficulty in hearing; and that when Dr. Eisenberg discharged him the subjective complaints such as headaches continued, although the contusions and bruises were healed.
More serious than the ordinary sort of pain, however, were the emotional disturbances and personality change with respect to which there was substantial testimony.
Plaintiff testified that he could not hear as well, that his memory was not as good, that he had to take notes on everything that he was supposed to do, that he had not been able to do anything that took mental energy, and that about half an hour of good concentration was about all he could stand at one time. He also testified to irritability, dizziness, ringing in the ears, and difficulty in sleeping.
Supervisory employes at Evinrude Motors testified that it was hard for plaintiff to get along with the problems of design, that plaintiff seemed to be suffering from severe headaches which hurt production in the design element, that he had noticable episodes of forgetfulness, that he , and that he had become nervous, irritable and hard to get along with. Adequate medical testimony related these failings to the injuries received in the accident. Other witnesses testified that since the accident plaintiff's mind seemed to be dulled, he was less considerate, intolerant of other people's faults, had to be handled with kid gloves, was nervous, had episodes of forgetfulness, and was quarrelsome, all in marked contrast to his characteristics before the accident.
Dr. Schaeffer, a psychiatrist, testified that plaintiff had undergone a marked personality change, in the form of irritability, inability to concentrate, and feeling of loss of capacity to perform his normal activities, and that he was not able to do his work as well as before. In February 1958 the condition was worse than previously, plaintiff showing much depression, with tears in his eyes and marked expression of hostility toward almost everybody. In the doctor's opinion the brain concussion produced the symptoms and because of the irritability and difficulty in concentration there developed an added emotional reaction in the form of hostility and depression which accentuated the disability. He considered the prognosis poor, since the symptoms had actually progressed at time of trial rather than being less severe. In his opinion there should be some improvement, but there would be some residuals in the form of headaches, dizziness and personality changes, with feelings of hostility and difficulty in relationships with other people which are likely to remain with him for the rest of his life. He further testified that a cerebral concussion generally causes some difficulty in performing mental tasks as easily as before the accident, and a patient whose work consists of mental activity is bothered more by the residuals because there is increasing inability to concentrate and the feeling that he is not able to do his work as well as before; which may be very upsetting and lead to more symptoms.
It was within the province of the jury to believe this testimony. We cannot say that it was inherently incredible or was rendered incredible by other evidence. While medical witnesses testified that plaintiff's objective ailments resulting from the accident had been cleared up, the jury could reasonably believe that he had the symptoms described above. While classed as subjective, they may have been very real. Ailments of the mind and brain are real though intangible, and may cause as much suffering and disability as the so-called objective injuries that are more readily recognized, measured and tested. To be sure, they are more easily simulated and deception may be more difficult to expose; but that does not mean that everybody asserting subjective symptoms in the absence of objective disorders must necessarily be treated as a malingerer. Here there was no medical testimony that plaintiff was faking, and sufficient medical testimony to warrant the jury in believing that plaintiff's condition was as above described and that it resulted from the injuries received in the accident.
We need not labor the point that the jury could properly infer from the evidence above summarized, that plaintiff underwent great mental suffering.
The jury could also find that plaintiff suffered substantial disability, in addition to the eight weeks...
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