Merz v. Old Republic Ins. Co., 178
| Decision Date | 30 November 1971 |
| Docket Number | No. 178,178 |
| Citation | 53 Wis.2d 47,191 N.W.2d 876 |
| Court | Wisconsin Supreme Court |
| Parties | Charles MERZ, Plaintiff-Respondent, v. OLD REPUBLIC INSURANCE COMPANY et al., Defendants-Third Party Plaintiffs-Appellants, SEARS ROEBUCK & COMPANY, Third Party Defendant-Respondent. |
This appeal arises out of a taxicabpedestrian accident which occurred on January 16, 1969, in the city of Milwaukee at the intersection of North 54th street (a one-way street going north) and West Vliet street. Charles Merz., respondent, an eighty-four-year-old man, was waiting to cross 54th street in a westerly direction in order to go to a local bakery. He waited for a taxicab, driven by Ervin Gierach, appellant, to go through the intersection going north on 54th street. When the cab had passed, Merz started to cross the street. The cab continued going north on 54th street until its passage was blocked by a parked truck owned by Sears, Roebuck & Company. The cab had actually proceeded nearly 70 feet north of the intersection when it reached the truck which blocked the narrow street. Because he could not proceed north on 54th street. Gierach backed the cab south on 54th street. The taxi struck Merz as he was crossing in the crosswalk, causing severe injuries to the man's left hip.
This action was commenced in the circuit court for Milwaukee county against Gierach and his insurance carrier, Old Republic Insurance Company, asking damages for Merz' injuries. Gierach and Old Republic brought a third-party complaint against Sears, Roebuck & Company. The action was tried to a jury in the circuit court, Hon. Max Raskin presiding. Following the submission of all evidence, and before the case was submitted to the jury, the court directed a verdict in favor of Sears and ordered the third-party complaint dismissed. The jury then considered the case and returned a special verdict exonerating Merz of any negligence and finding Gierach causally negligent. By its verdict the jury awarded Merz $7,900 for medical expenses, $3,000 for past pain and suffering, and $9,000 for future pain and suffering. All of appellants' motions after verdict were denied, and judgments were entered on the verdict and dismissing the third-party complaint. Gierach and Old Republic appeal from both judgments.
Rudolph & Moore, Milwaukee, for appellants.
Robert D. Jones, Charles M. Hanratty, Milwaukee, Robert L. Wilkins, Milwaukee, of counsel (for plaintiff-respondent).
Walther & Halling, Milwaukee, David B. Halling, Milwaukee, of counsel (for third-party defendant-respondent).
Several questions are presented in this appeal:
1. Is the jury's verdict exonerating plaintiff of any negligence supported by any credible evidence?
2. Was the jury's award of damages for future pain and suffering excessive?
3. Should the collateral source rule be modified when Medicare payments are involved?
4. Was it prejudicial error to allow an attorney representing the third-party defendant to testify and impeach a witness against his client?
5. Did the circuit court property direct a verdict in favor of the third-
party defendant, Sears, Roebuck & Company? Is the Jury's
Appellants contend that the jury's finding of no negligence on the part of respondent Merz is without support in the evidence.
'* * * To resolve this issue we must judge the jury verdict in the light of the familiar rules that (1) a jury verdict will not be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings, (2) this is particularly true when the verdict has the blessing of the trial court, and (3) the evidence is to be viewed in the light most favorable to the verdict.' 1
While appellants argue that Merz was negligent in not seeing the taxi before he was struck, the evidence shows that Mr. Merz did indeed see the cab but was simply unable to avoid being struck. Appellants rely upon cases 2 in which the jury found a pedestrian negligent in not seeing the car before it struck him. The jury made no such finding here and there is clearly evidence which backs up their determination. The jury must have considered that Mr. Merz first waited for the cab to pass and then crossed within the crosswalk; the cab then backed up the wrong way on the one-way street, failing to stop at the intersection crosswalk, and failing to yield the right of way of Merz.
Appellants next contend that the award of $9,000 to the eighty-four-year-old plaintiff for future pain and suffering is excessive. This contention was made in motions after verdict and the trial court found the award not to be excessive. Where such a contention is made at the appellate level
'* * * The verdict will not be upset merely because the award was large or because the reviewing court would have awarded a lesser amount, but rather only where it is so excessive as to indicate that it resulted from passion, prejudice, or corruption, or a disregard of the evidence or applicable rules of law.' 3
Our central inquiry must be to the question of whether there is credible evidence to support the jury's finding. A separate jury determination was made for pain and suffering from the time of the accident (January 16, 1969) to the date of trial (April 2, 1970) as $3,000. Therefore, the finding of the jury as to future pain and suffering was to cover damages by reason of permanent injury, and pain and suffering subsequent to the trial.
'Evidence must be viewed in the light most favorable to the verdict.' 4
After the left hip fracture, Merz had a Jewitt nail inserted in his injured hip. At the time of trial there was some limitation of motion. Although the hip operation was successful there still remained pain with extremes of motion. Merz had a slight limp. Appellants do not question the fact that there are residuals but contend that the evidence as to these residuals does not justify the amount awarded by the jury.
There is no question but that the entire lifestyle of the plaintiff was changed by this accident. He no longer can de house or yard chores, shopping, or do other things to accommodate his wheelchaired wife. While he had been an active and alert individual prior to the accident, his mobility after the accident was decreased. Under the circumstances we think it is entirely within the range of reason for the jury to award $9,000. Although it may be that his life expectancy was limited to between 2 to 4.2 additional years, this does not mean that he should be foreclosed from receiving the award made here. In recent years we have reviewed a number of jury verdicts in which the claim is made that awards have been excessive in view of the substantial age and short life expectancy of the parties injured. We have said:
'While age and life expectancy are entirely proper items for consideration in the assessment of damage awards, it does not follow that persons of advanced years are to be foreclosed from receiving substantial awards.' 5
We conclude that the evidence supports the jury's award of damages.
In the present case a portion of respondent's medical expenses were paid by the federal government under the Medicare program. Appellant argues that respondent should not be entitled to recovery of those sums paid under Medicare because this amounts to double payment. Wisconsin has long been committed to the collateral-source rule which provides that a plaintiff's recovery will not be reduced by the fact that the medical payments were made by some source collateral to defendant. 6 Appellants advance no cogent argument why Medicare payments should be exempted from the collateral source rule. Indeed, there is no apparent difference between private health insurance and Medicare, other than that Medicare is administered by the federal government. Eligible individuals (like Mr. Merz here) make payments under the Medicare program just as subscribers to private insurance pay premiums.
The Testimony of an Attorney Appearing on Behalf of Sears.
In reviewing the judgment dismissing the third-party complaint by appellants against Sears, Roebuck & Company, the first question presented is whether the trial court properly allowed an attorney for Sears' insurance carrier, Allstate, to testify in an effort to impeach a witness adverse to Sears. Attorney Warren Klaus had participated in the selection of the jury and had made the opening statement on behalf of Sears. He took no further active part in the conduct of the trial, but he appeared as a witness later in the trial. This appearance occurred after the cab driver, Gierach, and the cab company's insurance carrier, Old Republic, called the taxicab passenger to testify. The passenger stated that a Sears truck was blocking North 54th street. In an effort to rebut this testimony, Sears, over appellants' objection, called Attorney Klaus who testified that a week before trial the passenger had been unable to identify the truck Appellants now contend that allowing Attorney Klaus to testify was prejudicial error.
In Peterson v. Warren 7 this court indicated that:
It should be noted initially that the Canon referred to in Peterson (A.B.A. Canons of Professional Ethics, Canon 19) was modified in the 1969 A.B.A. Code of Professional Responsibility. 8 Discipline Rule 5--102(A)...
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