Peterson v. Western Cas. & Sur. Co.

• Decision Date: 02 December 1958
• Citation: 93 N.W.2d 433,5 Wis.2d 535
• Parties: Bernard C. PETERSON, Respondent, v. WESTERN CASUALTY & SURETY CO., a foreign insurance corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 433

93 N.W.2d 433

5 Wis.2d 535

Bernard C. PETERSON, Respondent, v. WESTERN CASUALTY & SURETY CO., a foreign insurance

corporation, Appellant.

Supreme Court of Wisconsin.

Dec. 2, 1958.

Frank L. Morrow, Eau Claire, for appellant.

Donald L. Farr, Eau Claire, for respondent.

FAIRCHILD, Justice.

Defendant challenges the judgment on these grounds: (1) the award of damages was excessive; (2) plaintiff's counsel made allegedly improper statements upon argument to the jury and the trial court did not take adequate measures to protect defendant from resulting prejudice; (3) plaintiff's counsel discussed the defense interposed by defendant with defendant's insured before defendant's counsel had the opportunity to do so; (4) the court did not correctly submit to the jury the issue of whether plaintiff's injury was caused intentionally by the insured. We conclude that the evidence does not support the award of damages and that there must be a new trial. Because of our conclusions on the other claims, the new trial will be limited to the issue of damages.

1. Damages. Plaintiff was thrown to the pavement. When he picked himself up, he realized that his knees were hurt and his hands sore. He drove a squad car back to headquarters. He noticed a severe pain in his neck and it became stiff.

A doctor examined plaintiff and sent him to the hospital. Thereafter, Dr. Fuson treated him. Plaintiff was in the hospital four days at that time and then had a number of heat treatments at Dr. Fuson's office. He was in bed much of the time at home. Dr. Fuson sent him back to the hospital for ten days starting November 6. The first diagnosis was a sprained neck. X-rays taken October 12 and November 6 were negative.

Plaintiff was forty-six years old and had been employed by the police department at Eau Claire since 1938. At the time of injury he was assistant chief, at a salary of $525 per month. He did not work in November; he worked thirteen and one-half days in December and sixteen days in January, none in February. On March 3, 1957 he retired from the force by reason of disability. On April 28 he went to work as timekeeper for a construction company and was still working in early October, 1957, at the time of trial. He earned $80 per week.

On January 11, 1957 Dr. Fuson referred plaintiff to a psychiatrist, Dr. Brousseau. Plaintiff testified that he experienced pain and headaches down to the time of trial; that there was a creaking or grating in his neck; that at times he had sharp pains in his neck to such an extent that he couldn't think properly; that he at times lost feeling in his fingers and feet. The doctors could not determine the reality of his sensations by observation or objective tests, except that when plaintiff bent his neck, muscles spasm could be felt.

Dr. Fuson testified that in his opinion plaintiff does have the sensations complained of and they are a result of his injury; that on March 3, 1957 the doctor felt that plaintiff was not in condition to continue his police work. His only testimony with respect to the future was: 'I am unable to say whether there is a permanent injury.'

Dr. Brousseau testified that in his opinion plaintiff was suffering from a psychoneurosis of a post traumatic nature; that the condition is disabling as far as police work is concerned. 'I am referring to the symptoms of pain and disability around his head and neck, headaches, and as well as his marked nervous tension, irritability and general being depressed and unhappy reaction.' Dr. Brousseau's only testimony as to the future was:

'Q. Is there any way to tell--for you to tell, Dr. Brousseau, as to how long the present condition of post-traumatic neurosis will continue with the plaintiff? * * *

'A. I am a little confused in the question. There is no absolute way of saying how long this might last.'

There was no testimony as to prognosis such as there was in Kincannon v. National Indemnity Co., Wis., 92 N.W.2d 884.

We consider that the rule expressed in Diemel v. Weirich, 1953, 264 Wis. 265, 268, 58 N.W.2d 651, 652, with reference to allowance for the future continuation of pain where the injury is subjective in character, is applicable here, both to continuation of pain and other disagreeable sensations and continuation of the disability which results therefrom. 'The members of juries also being laymen should not be permitted to speculate how long, in their opinion, they think such pain will continue in the future, and fix damages therefor accordingly. Only a medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue.'

We conclude that the jury's award of $16,250 was not supported by the evidence of impairment of earning capacity plus pain and suffering during the year which elapsed between the injury and the trial. Some unknown...