Milbauer v. Transport Emp. Mut. Benefit Society
| Decision Date | 15 January 1973 |
| Docket Number | No. 192,192 |
| Citation | 203 N.W.2d 135,56 Wis.2d 860 |
| Parties | Alice MILBAUER, Appellant, v. TRANSPORT EMPLOYES' MUTUAL BENEFIT SOCIETY, Respondent. |
| Court | Wisconsin Supreme Court |
Kraemer, Binzak & Sylvan, Menomonee Falls, for appellant.
Kivett & Kasdorf, Milwaukee, for respondent.
The dispositive issue on this appeal is whether the trial court's findings of fact that Milbauer died a natural death is contrary to the great weight and clear preponderance of the evidence.
Plaintiff maintains that she submitted sufficient prima facie evidence to establish that the trauma sustained by her husband was a substantial factor in his demise. Although this may be true, it does not command a reversal. This court has often held that the findings of a trial court without a jury will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence; that it is not necessary that the evidence in support of the findings constitute the great weight or clear preponderance, nor is it sufficient that there is evidence to support a contrary finding; and that to command reversal, the contrary evidence must constitute the great weight and clear preponderance of the evidence. Navine v. Peltier (1970), 48 Wis.2d 588, 59o, 180 N.W.2d 613. Applying the great-weight-and-clear-preponderance test, this court must consider the evidence as a whole. This requires that the evidence on each side be weighed and probabilities arrayed against probabilities at least sufficiently to determine whether those on the appellant's (plaintiff's) side so manifestly outweigh those supporting the finding as to meet the great weight and clear preponderance necessary to disapprove the finding complained of. Druml Co. v. Capitol Machinery Sales & Service Co. (1965), 29 Wis.2d 95, 98, 138 N.W.2d 144.
An autopsy was performed which, among other things, revealed that the deceased had sustained a three-inch linear skull fracture.
Plaintiff submitted proof tending to show that death was the result of pressure changes on the vegetative centers caused by a skull fracture and the cerebral contusions and lacerations associated with the fracture. Plaintiff attributed the skull fracture to an accidental external trauma.
Transport submitted proof tending to show that the primary cause of death was the development of an intracerebral left hemisphere hemorrhage related to hypertension and arteriosclerosis; that such was a spontaneous process as distinguished from a process provoked by some external factor; and that the fatal process was in progress without the influence of the skull fracture.
Milbauer was a bus driver who worked the 5:30 p.m. to 1 a.m. shift. On the afternoon of March 25, 1969, the weather was inclement; it had been snowing and sleeting. Plaintiff arrived home about 5:30 p.m. and found the sidewalk partially shoveled. Upon entering the house, she found her husband lying on the bed fully clothed for work. During the course of the early evening he was partially ambulatory although uncommunicative. About 9:30 p.m., their daughter came home and realized something was wrong with her father. Milbauer was taken to St. Michael's Hospital. Those hospital records indicate that he was breathing stertorously, was cooperative, but completely aphasic and drooled. No bed was available at St. Michael's so he was transferred to County General Hospital. He remained at County General Hospital until March 29, 1969, when he expired. During the entire time in the hospital, he was commatose and at no time between March 25, 1969, and his death was he able to talk to the plaintiff.
Dr. Lawrence J. Clowry, a pathologist, performed the autopsy. A more precise examination of the brain tissue was done by a neuropathologist. Dr. Clowry testified on behalf of the plaintiff. Dr. Norbert Enzer, also a pathologist, testified on behalf of Transport. He did not participate in the autopsy. Both Clowry and Enzer were qualified as expert medical witnesses.
The parties in the instant case stipulated that all the medical records of the deceased be received in evidence. These reflected an extensive history of hypertension including the autopsy's indication of an enlarged heart and advanced atherosclerotic degeneration in the arterial system at the base of the brain. The facts stated in the record are not in dispute, and both parties relied upon the records in substantiating their conflicting opinions.
Dr. Clowry testified that it was his opinion that the skull fracture, which was attributable to an external trauma, was the direct cause of death. However, on cross-examination he conceded that some of the findings in the autopsy report were compatible with a cerebrovascular accident (stroke) and that the deceased could have suffered a cerebrovascular accident, fallen, and then fractured his skull. He indicated that they were mutually exclusive, and that he could not determine to a reasonable degree of medical probability which came first. He stated he preferred the explanation of the trauma.
The essence of the testimony of Dr. Enzer was that it was his opinion that the primary cause of death was the development of an intracerebral left hemisphere hemorrhage related to hypertension and arteriosclerosis. That such was a spontaneous process as distinguished from a process provoked by some external factor. He further testified that there were no findings within the skull not compatible with his conclusion and that the fatal process was in progress without the influence of the fracture of the skull.
Following the trial, the court, after a careful review of the testimony and exhibits, determined to a reasonable certainty that by the greater weight of credible evidence death was not caused by the skull fracture. The trial court further found that death was due to a spontaneous intracerebral hemorrhage due to vascular pathology.
Plaintiff challenges the reasoning of Transport's expert and argues that the evidence has more than one reasonable inference. This court has often stated that the weight of testimony and the credibility of witnesses are primarily for the trial court and where more than one reasonable inference can be drawn from the credible evidence, the reviewing court must accept the one drawn by the trier of fact. Hanz Trucking, Inc. v. Harris Brothers Co. (1965), 29 Wis.2d 254, 262, 138 N.W.2d 238....
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