McMahon v. Bergeson

• Decision Date: 02 February 1960
• Citation: 101 N.W.2d 63,9 Wis.2d 256
• Parties: Joseph McMAHON, Respondent, v. Ben BERGESON et al., Appellants.
• Court: Wisconsin Supreme Court

Page 63

101 N.W.2d 63

9 Wis.2d 256

Joseph McMAHON, Respondent, v. Ben BERGESON et al., Appellants.

Supreme Court of Wisconsin.

Feb. 2, 1960.

Rehearing Denied April 5, 1960.

Stephens, Bieberstein, Cooper & Bruemmer, Paul C. Gartzke, Madison, for appellants.

Vernon Molbreak, Madison, for respondent.

DIETERICH, Justice.

The issues involved here are upon the plaintiff's damages for personal injuries.

Joseph McMahon, the plaintiff, testified that he was involved in an accident on March 22, 1957. That he is employed by the National Distillers Products Company as a salesman. The company manufactures alcoholic beverages. The products are sold to wholesalers. McMahon works with the salesmen in the promotion and sale of the merchandise. The plaintiff further stated: '* * * As soon as I entered the intersection I heard a screech and * * * I knew I was in trouble at that moment. I tried to veer my car to the left, but all of this happened so fast that I had no opportunity to do anything to avoid the accident, and then I was hit in the front, the door and the right rear fender. The front part of the defendant's car struck my car * * * The next thing I remember is standing next to the car which was about 90 feet off the intersection turned at an angle, * * * I just stood there. I had no control of myself, * * * the policeman came up to me after while and asked me if I was the other party and I said, 'yes.' I started to cry and tremble. He then took me to his car. (At this point witness hesitated, tears came to his eyes, and he had difficulty in talking.) They took me in the police car to the hospital. I had a pain in the back of my head, my head was aching. I went to the Madison General Hospital and was given emergency treatment. They called my family physician, Dr. Gerald Derus, and he prescribed that they give me a shot in the arm which they did and it quieted me down. * * * I was then taken home and put to bed. I next saw my physician sometime at the end of that following week, Thursday or Friday. * * *' He further testified that he also had seen Dr. Berglund and Dr. Smith.

The following questions were asked Mr. McMahon:

'Q. Between March 22, 1957, and January 10, 1958, you didn't have to take off any whole days, is that right, but you have had to take off whole days since January 10, 1958? A. Yes, I have.

'Q. How many whole days have you had to take off since January 10, 1958? A. I can't give the exact number to that. It may be 10 or 12 or 14, in there.

'Q. * * * You don't have any trouble sleeping, do you, sir? A. No, I don't.'

Officer Crary was a witness to the accident and testified that he saw the plaintiff fly out of the car, land on his feet and sink to his knees. He did not see if the plaintiff struck his head. He saw the plaintiff stand next to his car for a short time and the plaintiff lost control of himself, commenced crying, shaking and complained of a headache.

The plaintiff was taken to the Madison General Hospital and the emergency room report shows under physical findings that plaintiff was a hyperactive male, crying and hyperventilating. Dr. Derus, the plaintiff's family doctor, was called by the hospital at the request of plaintiff, but did not go to the hospital. Plaintiff was discharged from the hospital 55 minutes after entry.

Dr. Derus saw the plaintiff March 25, 1957, and at various times thereafter. On March 25 the plaintiff complained of being nervous, pain in the back of his neck, feeling somewhat unreal, and had trouble with clouding of his mind, as he called it. The doctor testified that '* * * I examined his cervical spine, his reflexes and those things were good with an ordinary neurological examination. At that time I suggested that we get further X rays of his neck and entire spine, which were done.' The X rays revealed no evidence of fracture or dislocation of the cervical spine and back. The doctor next saw the plaintiff on April 10, 1957, at which time the complaints were quite similar to those previously mentioned, although plaintiff complained of more cloudiness of mind and doing things that were not like him. The doctor prescribed sedatives and drugs to release the muscle spasms. On April 10, 1957, the doctor recommended that the plaintiff be further evaluated and treated by Dr. Wixson, a bone specialist, and subsequent to that plaintiff went to the doctor's office for deep heat treatments to the back of his neck. The doctor then referred the plaintiff to Dr. Berglund, a neurologist.

Dr. George Berglund, a neurologist, testified on behalf of the plaintiff. He stated that he limits his practice to the diseases of the brain and spinal cord, including injuries and tumors. He stated that he was asked to see Mr. McMahon at the request of Dr. Wixson, a bone specialist in Madison, and that he first saw Mr. McMahon on April 12, 1957. McMahon complained on that date of 'headache, burning pain in back of his neck, pain in the back between shoulder blades, pain in the low back and nervousness.' The doctor stated: 'I reviewed his past history to see if there was any previous serious illness or serious injury and there was none. He told me he felt perfectly well prior to the time of an automobile accident occurring on March 22, 1957. I am always interested in getting the patient's own words as to what they remember of the accident, because I am trying to determine whether or not there was a loss of consciousness or period of forgetfulness. If you keep that in mind I think we can evaluate the statement that he gave me, 'I remember the impact and the next thing I remember I was standing next to the car. I just stood there, I was serene, you Might call it, and then there was a few people who showed me marks on my coat. I presume I was thrown from the car; I can only presume that. In the space of about five minutes I began to shake, convulse and cry. I had no control of my facilities at all.' It was my impression then that there was a period of a few moments in which he did not recall what happened. We then went on to develop the symptoms he was having, having him describe them to me, and he went on to say that the burning sensation in back of his neck spread up to the back of his head, and 'the rest of my head is just one big headache; its like a foggy feeling, not a pain and nothing sharp.' I went on to ask him if he thought the pains had improved, gotten worse or remained the same, and he said if anything they had progressed. He also complained of some pain in the low back, at belt-line level. He went on to say this did not bother him very much except that when he would lean over that he would get the pain. He also described some discomfort being between the shoulder blades. He described this as a 'dull sensation,' and this had been present since the accident. He also said that on sudden postural changes, that is, bending over or rising up quickly from a chair he was aware of a feeling of dizziness which appeared to be a sensation of light-headedness rather than true spinning sensation.'

Neurological Examination.

'The examination is designed to see whether or not there has been any residuals of damage to the brain or spinal cord or the nerves that come from the spinal cord. I carried out this examination; he complained of some tenderness in the back of the head and scalp. Aside from that I found no abnormality. The findings were normal. He was a bit tremulous as he outstretched his fingers, but I could find no evidence that there was anything residual of brain damage on my examination. We arranged for him to have an electrical brain wave test at the University of Wisconsin, and this was done and was reported to be normal. Skull X rays were taken at Madison General Hospital and they too were normal. It was my opinion at the completion of the first examination that based upon his story to me as I quoted to you, there was this period of loss of consciousness or forgetfulness which lasted a matter of some moments or minutes. On that basis I had to conclude that he did have a brain concussion. A brain concussion by definition is a transitory disturbance of brain function. In other words, this period of unconsciousness was this transitory disturbance and then as he regained consciousness or regained his memory, then the brain functioned normally. There was also evidence of rather marked nervousness and the nervousness can give rise to muscle tension and this in turn aggravate the symptoms such as one might get if there is a brain concussion or even the tightness of muscles which frequently follows a head being jarred. I followed Mr. McMahon at intervals, and I saw him last on June 3 of this year. The symptoms of dizziness, this light-headeness on sudden postural change is a very common symptom after a brain concussion, and this symptom gradually becomes less and less noticeable until it finally clears. That has been the case of Mr. McMahon. So I felt that in so far as the brain concussion was concerned that he showed progressive improvement, but as I followed him and saw him from time to time it became evident or remained evidence that symptoms of nervousness were very prominent, and for that reason I suggested at first that we'd like to have him seen by a specialist in this regard and arrangements were finally made for him to be seen by Dr. Max Smith in regard to his nervousness.'

Psychiatric Examination.

Dr. Max Smith, a psychiatrist, testified on behalf of the plaintiff. A synopsis of the doctor's testimony follows:

'I first saw him May 21, 1958. I kept a record of the plaintiff's treatment and have that record with me. * * * When I first saw Joseph McMahon he stated that in March of the year previous he had had an automobile accident in which he had been temporarily knocked unconscious. * * * Then he came to or was suddenly aware, when he regained his awareness, he was standing by the car and felt a certain serenity but at the same time rather confused and befuddled. He...