Koczka v. Hardware Dealers Mut. Fire Ins. Co.

• Decision Date: 04 January 1966
• Citation: 138 N.W.2d 737,29 Wis.2d 395
• Parties: William KOCZKA, Respondent, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE CO., Appellant.
• Court: Wisconsin Supreme Court

Page 737

138 N.W.2d 737

29 Wis.2d 395

William KOCZKA, Respondent, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE CO., Appellant.

Supreme Court of Wisconsin.

Jan. 4, 1966.

Dr. David J. Ansfield, an orthopedist, examined Mr. Koczka for the appellant insurance company on June 6, 1962. He testified at the time of trial that it was his opinion that the effective range in the number of infrared treatments for a usual injury such as a sprain to the neck is six to 10 treatments. Only rarely, he continued, is a patient benefited by more than 10 treatments.

On cross-examination, Dr. Ansfield stated that he could not conceive of any person benefiting from more than 20 infrared treatments for the same injury and that if a person's work was causing a re-occurrence of pain, then infrared treatments would not be beneficial or necessary unless the patient ceased the particular aggravating activity. He also asserted that if 40 or more treatments were given over a period of four months this 'would have to be explained by some unusual condition that arose that required that many treatments.'

At the close of the testimony, the respondent moved for a directed verdict, which was granted by the trial court without first submitting the case to the jury. Judgment was entered for Mr. Koczka for $525. The defendant appeals from the judgment.

Ronald L. Piette, Milwaukee, for appellant.

Gratz & Shneidman, Donald C. Paveleck, Milwaukee, for respondent. GORDON, Justice.

We have concluded that the learned trial court erred when it granted a directed verdict in favor of the plaintiff.

The evidence must be considered in a light most favorable to the party against whom the verdict was directed. Our review of the evidence convinces us that the evidence was not so clear and convincing as to have permitted impartial minds to have come to but one conclusion. The foregoing are the recognized standards to be used in determining whether a directed verdict should be granted. Tanberg v. Rydberg (1965), 26 Wis.2d 91, 94, 95, 131 N.W.2d 858; Anderson v. Joint School Dist. (1964), 24 Wis.2d 580, 583, 584, 129 N.W.2d 545, 130 N.W.2d 105; Schlueter v. Grady (1963), 20 Wis.2d 546, 552, 553, 123 N.W.2d 458; Gilson v. Drees Brothers (1963), 19 Wis.2d 252, 254, 255, 120 N.W.2d 63.

In scrutinizing the record, we find that there was evidence offered by the plaintiff which, if believed by the jury, would warrant a determination in favor of the plaintiff; however, this record also contains a sufficient challenge to the plaintiff's case so as to have foreclosed the court's directing a verdict in favor of the plaintiff. The testimony of the defendant's medical witness, when construed in a light favorable to the defendant, adequately raised a factual issue for the jury. Dr. Ansfield testified that six to 10 was the usual effective number of treatments and that in excess of 20 treatments would not be necessary except under extraordinary circumstances.

It is true that Dr. Ansfield declined to condemn in express terms the number of treatments given to Mr. Koczka by Dr. Salinsky. Nevertheless, the fair import of Dr. Ansfield's testimony was to put in issue, as a factual matter, the necessity for all the medical expenses in the instant case. Heuer v. Heuer (1959), 7 Wis.2d 208, 213 N.W.2d 485; Wadoz v. United Nat. Indemnity Co. (1957), 274 Wis. 383, 391, 80 N.W.2d 262.

Dr. Salinsky was unwilling to classify Mr. Koczka's case as more or less serious than the average, but...