Markey v. Hauck

• Citation: 73 Wis.2d 165,242 N.W.2d 914
• Decision Date: 14 June 1976
• Docket Number: No. 781,781
• Parties: Michael W. MARKEY and Max Markey, Plaintiffs-Respondents, v. David M. HAUCK et al., Defendants-Appellants, State Farm Mutual Insurance Company, an Illinois Corporation, Defendant. (1974).
• Court: United States State Supreme Court of Wisconsin

Page 914

242 N.W.2d 914

73 Wis.2d 165

Michael W. MARKEY and Max Markey, Plaintiffs-Respondents, v. David M. HAUCK et al., Defendants-Appellants State Farm Mutual Insurance Company, an Illinois Corporation, Defendant.

No. 781 (1974).

Supreme Court of Wisconsin.

Submitted on Briefs April 12, 1976.

Decided June 14, 1976.

Roy S. Wilcox and Wilcox & Wilcox, Eau Claire, on brief, for defendants-appellants.

William A. Adler and Adler, La Fave & Johnson, Eau Claire, on brief, for plaintiffs-respondents.

DAY, Justice.

The order appealed from grants plaintiffs' motion for a new trial on the issue of negligence, following a jury verdict finding the defendants-appellants not negligent. The principal issues on appeal are whether the trial court erred in finding the jury's verdict to be against the great weight and clear preponderance of the evidence, and whether the new trial granted should cover damages as well as negligence.

On January 11, 1972, defendants David Hauck, Mary Lou Hauck, his wife, and Margaret Allen drove in Margaret Allen's automobile from their home in Minneapolis to visit a hospitalized friend in Eau Claire. The Hauch's two-year-old son, Brian, accompanied them. At the hospital they met Mr. Hauck's brother, Jerry. The Allen car and Jerry Hauck's car began the return trip to Minneapolis together. Jerry Hauck pulled into a gas station for fuel and the Allen car, driven by David Hauck, pulled in David Hauck got out of the Allen car to make a purchase, leaving the engine running at Ms. Allen's request, because it was 'bitterly cold.' He did not set the parking brake. Ms. Allen was seated in the front seat on the passenger's side while Ms. Hauck and Brian were in the rear seat. Brian indicated he wanted to go into the front seat and, as was his custom, started climbing over the seat back at a point somewhat to the left of the center of the car. Ms. Allen twisted to her left and supported Brian's shoulders. As he came over the seat, Brian's lower body straightened out to accomplish a roll over the seat back. Although neither Ms. Allen nor Ms. Hauck saw Brian's foot strike the gear shift lever behind the steering wheel, they agreed that this must have happened, moving the lever down from the 'park' to the 'drive' position. The car started moving forward and struck Michael Markey in his lower back. Ms. Hauck reached over the seat and returned the gear shift lever to the 'park' position. Ms. Allen started to move her foot to the brake but testified that, encumbered by her winter clothing and the child, she did not get it over the transmission hump before Ms. Hauck had reached the gear shift.

behind him, stopping a distance of from three to five feet behind Jerry Hauck's vehicle. Plaintiff Michael Markey, a gas station attendant, began filling Jerry Hauck's automobile. He [73 Wis.2d 168] crouched behind it to reach the fuel tank opening but was visible to occupants of the Allen car.

Mr. Markey testified that he had felt the Allen car knock him off his feet and push him into contact with trunk and trailer hitch of the Jerry Hauck automobile, and that as he was pushed into the Hauck car he could 'hear the engine (of the Allen car) revving up and . . . the tires breaking loose on the pavement.' Neither Ms. Allen nor Ms. Hauck recalled hearing these sounds.

At the time of the accident Michael Markey was a 17-year-old high school student earning $1.60 per hour for part-time work at the gas station. He was athletically active--a state champion archer, among other activities--but before the accident had suffered recurring pain in his back during the summer and fall of 1971 for which he was treated by an osteopath, Dr. Donald R. Bartingale, five times. Prior to that he had strained his back playing football and had been treated by either an osteopath or a chiropractor. Dr. Bartingale testified that Markey had told him of chronic pain in his upper back over a period of years. Dr. Bartingale's examination disclosed a 'sacroiliac strain' of the lower back.

After the accident Markey spent a week in the hospital suffering from cuts and bruises, a hairline fracture of his left arm, and a severe strain in the lower thoracic and lumbar areas of his back. An orthopedic specialist was consulted who diagnosed a 'possible sprain' to the back and recommended rest. Markey was released from the hospital having made a 'good' recovery, and never returned to the hospital or to that particular orthopedic surgeon.

Markey stayed at home, barely able to walk, for a couple of weeks before returning to school. In February, 1972, he began a new series of forty visits to Dr. Bartingale that lasted for a period of 17 months. The doctor found that the muscles of the lower back were 'ropey' and 'spastic' and commenced heat, microwave, and manipulative therapy, and intermittent traction.

Markey returned to his gas station job for a few weeks in April, 1972, but his back continued to bother him and his family was required to take him home and put him to bed. He was occasionally unable to perform basic motions--for example, getting into or out of a shower or of an automobile. His sporting activities were eliminated. Dr. Bartingale sent Markey to another orthopedic surgeon who was unable to find any medical reason for the lower back pain.

After finishing high school Markey spent June, 1972, at a school in North Carolina learning the operation of heavy construction After his return from North Carolina and again a year later, Markey made visits to a neurological specialist in Marshfield, Dr. Francis Kruse, Jr., who performed a number of tests. He found that Markey did not suffer from any pathological injury and had the full range of movement in his back, although he did suffer subjectively-found pain at the extremes of movement of his back and legs resulting from strain of the muscle tissue in his back. This pain will continue permanently, according to Dr. Kruse, because even when the muscles heal, residual scar tissue will make them stiff and sore. Markey's activities will not be limited, but he will experience discomfort.

equipment. His pain continued when he was required to be on his feet for any period. He returned to Wisconsin and attempted to resume his gas station work in August; but the back pain returned and he was unable to continue. In September he started work as a construction equipment operator at a wage in excess of $8.00/hour. From that point he was employed more or less continually in that capacity, allowing for the seasonal nature of the construction business. His back continued to bother him and made any athletic activities difficult if not impossible.

The jury returned a verdict finding that none of the three defendants had been negligent and assessed damages at $1,678.40 for loss of wages and $7,300 for pain and suffering. Combined with the court-determined medical expenses of $1,110.10, the total damages were $10,088.50. During its deliberations the jury requested a rereading of the instruction defining negligence.

Plaintiffs made motions after verdict for, among other things, a new trial because the verdict was contrary to the weight of the evidence and because the damages were inadequate. The trial court determined that (1) a new trial should be granted on the issue of negligence because the verdict was contrary to the greater weight of the evidence but that (2) the damages as found by the jury were not inadequate and were sustained by the evidence,...