Landrath v. Allstate Ins. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: FAIRCHILD
• Citation: Landrath v. Allstate Ins. Co., 259 Wis. 248, 48 N.W.2d 485 (Wis. 1951)
• Decision Date: 15 June 1951
• Parties: LANDRATH et al. v. ALLSTATE INS. CO. et al.

Page 485

48 N.W.2d 485

259 Wis. 248

LANDRATH et al. v. ALLSTATE INS. CO. et al.

Supreme Court of Wisconsin.

June 15, 1951.

Clarence Landrath and Realda Landrath began an action on July 27, 1949, to recover damages against the Allstate Insurance Company, insurer of Clifford Goehl. The Fidelity & Casualty Company of New York, the insurer of Landrath, was interpleaded as a defendant. The damages claimed resulted from a collision between the car driven by Clifford Goehl, the insured of the Allstate Insurance Company, and the automobile driven by Clarence Landrath. The collision occurred at the intersection of Main and Third Streets in the city of Janesville. The plaintiffs were injured, and their car damaged. The salient facts determined by the jury are as appears from the special verdict:

'Question 1: At and just prior to the time of the collision in question, was Clifford Goehl negligent in the following respects:

'(a) As to keeping a proper lookout for other traffic on the highway?

'Answer: Yes

'(b) As to the management and control of his automobile?

'Answer: Yes

'Question 2: If you answer any subdivision of Question 1 'Yes,' then was said negligence of Clifford Goehl which you so find a cause of the collision and of the damages caused thereby:

'As to Question 1(a)?

'Answer: Yes

'As to Question 1(b)?

'Answer: Yes

'Question 3: At and just prior to the time of the collision in question, was Clarence Landrath negligent in the following respects:

'(a) As to keeping a proper lookout for other traffic on the highway?

'Answer: No

'(b) As to the management and control of his automobile?

'Answer: No

* * *

* * *

'Question 9: What damages did Clarence Landrath sustain?

'(a) By reason of his injury?

'Answer: $250.00

'(b) By reason of medical and hospital expenses for himself and his wife?

'Answer: $375.00

'(c) By reason of loss of society and services of his wife?

'Answer: $750.00

'(d) By reason of the damage to his automobile?

'Answer: (By the Court) $600

'Question 10: What damages did Realda Landrath sustain by reason of her injury?

'Answer: $7,000.00'

The usual motions after verdict were made. The trial court granted the motion of the plaintiffs for judgment in favor of the plaintiffs and granted judgment also in favor of the Fidelity & Casualty Company of New York, dismissing the Allstate Insurance Company's cross-complaint for its costs and disbursements. The defendant, Allstate Insurance Company, appeals.

Farr & Brown, Eau Claire, for appellant.

Frank L. Morrow, Eau Claire, for plaintiffs-respondents.

Ramsdell, King & Carroll, Eau Claire, for interpleaded respondent.

FAIRCHILD, Justice.

The difficulties presented by this appeal must be considered from the standpoint of the weight that may be given to the testimony bearing on the answer of '$750.00' to Question No. 9(c): 'What damages did Clarence Landrath sustain * * * by reason of loss of society and services of his wife?'; and to the amount of '$7,000.00' in answer to Question No. 10: 'What damages did Realda Landrath sustain by reason of her injury?' There are other points raised by the appellant which will be treated with later in the opinion.

As to the primal question, it may be stated generally that we are concerned as to an existence of facts which show the damage by way of personal injury testified to by respondent, Realda Landrath. Her testimony relating to damage consists of her description of mental and emotional disturbance, with practically a complete absence of objective symptoms. So far as her testimony gives us any facts, the only objective or physical indication of an injury is a scar on her chin. She was in a collision of cars, was thrown forward, striking the windshield, and then thrown back against the seat. The testimony is to the effect that she and her husband were on their way to visit in Niles, Michigan, but because of the accident their automobile was damaged, and they changed their plans. They went from Janesville, where the collision occurred, to Chicago by bus. There they visited with relatives over Sunday; then on Monday they returned to Janesville, transacted some business, and Monday night left by train for Eau Claire. Soon after arriving at home, she called a physician, who saw her on March 18th. On April 21st, Dr. Ihle made an examination of her, resulting in findings as described by him as follows:

'Q. And will you tell us what you found on examination? A. The patient called attention to an area on the chin which, when examined, felt to be a firm mass that was tender to touch. She was a thin individual that stood erect. The shoulders hung at equal height. There was some flattening of her normal back region and the small of the back. Those areas were somewhat flattened. She demonstrated her back motions to be complete. On the limit of leftside bending, the patient complained of discomfort over the iliac crest which is the prominence on the side of the patient which is usually called the hip. She twisted well to the right and left without a complaint of pain. When she lay face down, the muscles of her back were relaxed. There was no spasm brought out by thumping the back or muscles. She complained of marked tenderness and squirmed on palpation or pressure over the spinous processes--those are the bumps that stick out along the person's back--when they were pressed in the area between the shoulder blades, specifically thoracic three-four, and five. She had generalized tenderness over all the other spinous processes in the back. There was no muscle tenderness. She had no tenderness along the sciatic nerves that go into the lower extremities. Tests to put stress on these nerves and strain on the vertebrae in the back were negative. That is, they were done without discomfort to the patient; and one test in which the leg is raised straight up from the table with the patient lying on the back caused pain in the back between the shoulder blades. Motions in her upper extremities, that is, the arms, were complete. She had normal muscle power in the arms and hands. The nerves to the upper extremities were intact to the finger tips. Her feet were in satisfactory, weight-bearing position and showed no changes in the nerves or muscles in either leg. X-rays of her back were negative for any lesion in the bone structures. That's it.

'Q. Now, following the obtaining of the history that you have stated and your examination of the patient and your observation of the patient, did you make a diagnosis of her condition? A. Yes.

'Q. What was your diagnosis? A. The diagnosis was strain of the back and neuroma of a sensory nerve on the chin.

'Mr. Farr: What was that, Doctor? A. Neuroma.

'The Court: Perhaps you better explain this for us. A. Neuroma is a little growth or tumor-like mass that forms on a nerve. It's something like a scar that you see in skin, only it has to do with a nerve.'

Quoting from facts stated in the appellant's appendix, the doctor also testified:

'Generally each examination revealed no physical basis for her complaint. There was only the expression of pain and discomfort by the patient when the back was pressed on. That is, the region of the back between the shoulder blades. * * * The x-rays were negative. That is, they did not show any trouble with the bone structure. * * * I do not believe that this patient was malingering. I account for the persistence of her complaints beyond a reasonable healing period for a sprain of the thoracic spine by the fact that I believe she was suffering from a neurosis. * * * As I think of neurosis, it is an unconscious, abnormal, physical meaning having to do with things that you can actually feel in the body, response by the body to an injury, to the emotions. * * * A traumatic neurosis could mean a neurosis due to injury. There are other types of neurosis not due to injury. The neurosis of the patient is a traumatic neurosis.'

On cross-examination he testified: 'Q. Other than the bump on her chin, did you find anything physically wrong with her? A. No.'

While the witness, Mrs. Landrath, evidently cooperated in the examinations made of her and convinced her physicians of the sincerity of her complaints, the doctor did say, quoting from appellant's appendix: 'Traumatic neurosis is a condition which often exists when someone is making a claim against another arising out of an accident. In some cases where this condition exists, after the person suffering from this ailment obtains a settlement or the case is disposed of, the condition disappears.' The doctor was unable to tell whether or not Mrs. Landrath would recovery from her symptoms, but it does so emphatically appear that all objective factors which could be the basis of a complaint are lacking that the point of excessive award by the jury becomes important.

From a statement of facts well established, we quote Dr. Thorsen, who was consulted by Mrs. Landrath, as follows:

'Anyone who gets into an accident where there is a legal question involved is at least aware of the fact that there may be a lawsuit or something of that nature and that may be something that makes some people give a false picture of how they feel. I have an opinion as to whether or not Mrs. Landrath was malingering. * * * So I tried to investigate to the best of my ability just how important a factor that might be. In my final conclusion, that was a minor factor; that there was no evidence that she...