Powers v. Allstate Ins. Co.
| Decision Date | 05 April 1960 |
| Citation | 102 N.W.2d 393,10 Wis.2d 78 |
| Parties | Mary Agnes POWERS, Appellant, v. ALLSTATE INSURANCE CO., a foreign insurance corporation, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Charles Saggio, Milwaukee, for appellant.
Walter S. Block, Milwaukee, for respondents Allstate Ins. Co. and Gurke, Jr.
Kivett & Kasdorf, Milwaukee, John R. Henderson, F. D. Huber, Jr., Milwaukee, of counsel, for respondents State Farm Mut. Auto. Ins. Co. and Folkert.
The questions which the court deems are presented by this appeal are:
(1) Is there credible medical evidence to sustain the jury's finding of permanent disability?
(2) If such question be answered in the affirmative, are the damages awarded for such permanent disability excessive?
(3) If such damages are excessive, what is the proper option to extend to the plaintiff as an alternative to granting a new trial as to damages?
The accident occurred October 16, 1955. At the time the plaintiff was twenty years of age and was a first-year student at Alverno College in the nurses' training course. Her parents then resided at Harvard, Illinois, and she was then living at the college dormitory. As a result of the collision her left knee was thrown violently against the dashboard of the car in which she was riding.
After the accident she was taken to a hospital. There were four small superficial cuts to the area over her left knee which were cleaned and dressed. She then was discharged and returned to the college dormitory. The next day her left knee was greatly swollen, and it pained and throbbed. However, she managed to attend her classes, and at no time did she miss any classes, except that she was excused from gym classes for a month. Two or three days after the accident she consulted Dr. Meisinger, the college physician, and he prescribed hot compresses. She saw Dr. Meisinger on several occasions after that. She also consulted her family physician at Harvard, Illinois, but he prescribed the same treatment as Dr. Meisinger.
After about six weeks the swelling receded, but the plaintiff testified that as of the time of trial, which was more than three years after the accident, her knee on occasion would still swell and give her pain. This would occur after she had been on her feet for many hours doing hospital work in connection with her nurse's training. She estimated that such instances of swelling and pain had occurred on an average of two or three times per week ever since the accident. She also testified that there had been occasions when her knee suddenly buckled or gave way.
On October 4, 1957, after the plaintiff had commenced the instant action, she consulted Dr. Verdone. Dr. Verdone made an examination and took X-rays. He prescribed a 'Thomas heel,' which the plaintiff was unable to obtain and cortisone to relieve the pain, but the plaintiff did not take the cortisone. She saw Dr. Verdone four or five times in all.
The only medical witnesses who testified at the trial were Dr. Verdone and Dr. Ansfield, the former being called by the plaintiff and the latter by the defendants.
Dr. Verdone is a physician engaged in general practice. Because of the fact that he had not been consulted by the plaintiff until after she had commenced the action, the trial court refused to permit him to testify to subjective symptoms communicated by the plaintiff. He testified that his diagnosis of the plaintiff's knee condition was that of a tear of the semilunar cartilage. The objective symptom upon which he based this was a clicking which he heard on the flexing of the plaintiff's knee. He stated that damaged cartilages will not regenerate or grow, and will not heal. Comparative measurements taken by him of the plaintiff's calves and thighs disclosed that the left calf was one-half inch smaller in circumference than the right, and the left thigh was five-eighths of an inch less in circumference than the right. It was Dr. Verdone's opinion that these differences in measurements were due to atrophy. He defined atrophy as a process of wasting or becoming smaller as a result of not complete use of an extremity. The X-rays taken by the doctor disclosed a normal left knee, but he stated this was because cartilage is not opaque and therefore is not shown on X-rays.
Dr. Ansfield is a physician who specializes in orthopedic surgery. On February 6, 1959, he examined the plaintiff on behalf of certain of the defendants. The X-rays taken at that time disclosed no bone injury. Measurements taken of the legs disclosed substantially the same slight atrophy in the plaintiff's left leg as did those taken by Dr. Verdone. However, Dr. Ansfield was unable to hear the clicking sound in the left knee upon the plaintiff flexing the same which Dr. Verdone testified he heard. Dr. Ansfield found no limitation in motion of the knee. He stated that the only way by which it could be determined that there was a torn cartilage would be by performing an exploratory operation, but admitted that there was a possibility of cartilage injury. It was his opinion that there was still some soreness in the knee of a mild character.
Dr. Ansfield further testified it was his opinion that at the time that he examined the plaintiff she had a five per cent disability of the left knee. He was then asked by one of the counsel for the defendants what he took into consideration in estimating such disability and he stated:
Dr. Ansfield, in response to a question about the 'probability' of surgery being performed on the plaintiff's knee at some future time, gave this answer:
(Italics supplied.)
The italicized sentence in such answer, coupled with the doctor's estimate of a five per cent disability to the knee existing as of the time of his examination some three years after the accident, is sufficient to permit the jury to draw the reasonable inference that such disability was permanent in character.
In Diemel v. Weirich, 1953, 264 Wis. 265, 58 N.W.2d 651, this court held that, where an injury is subjective in character and of such nature that a layman cannot with reasonable certainty know whether or not there will be future pain and suffering, there must be competent expert opinion testimony bearing on the permanency of such injury, or the likelihood that the injured person will endure future pain and suffering, before recovery may be allowed therefor; and that the unsupported subjective statements of the injured party, not a medical expert, are not sufficient. The symptoms of occasional swelling of the knee and pain, to which the plaintiff testified, are of this latter category. While swelling of the knee is an objective and not a subjective symptom, neither Dr. Verdone nor Dr. Ansfield testified to observing any swelling of the knee. However, the slight atrophy of the left leg, as disclosed by the comparative measurements of the calves and thighs of both legs, constitutes an objective finding. The clicking noise which Dr. Verdone testified he heard when the plaintiff flexed the knee is also objective and not subjective in character.
Furthermore, we do have expert medical testimony that there was some permanent injury. Dr. Verdone gave it as his diagnosis that there was a torn semilunar cartilage, and he testified that cartilage will not repair. Dr. Ansfield testified that the plaintiff had a five per cent disability of the knee when he examined her in February, 1959, and that he did not believe the knee would change in the future.
The defendants contend that there is no competent medical evidence of permanent injury because both Drs. Verdone and Ansfield were employed after suit was commenced for the purpose of giving testimony rather than treatment. It is pointed out that Dr. Verdone based his opinion partly on subjective symptoms and Dr. Ansfield's estimate of disability was based entirely on the subjective complaints of the plaintiff.
This court in Schields v. Fredrick, 1939, 232 Wis. 595, 598, 288 N.W. 241, 242, stated:
The weakness in this contention of the defendants is that the testimony of the two physicians bearing on permanent injury was admitted without objection being made at the time the questions were put. Furthermore, Dr. Ansfield's testimony with respect to the five per cent disability, and the factors upon which he based the same, together with his opinion that there would be no future change in the condition of the knee, was part of his testimony on direct examination when he was being examined by one of defendants' counsel. The rule of the Schields and Kath cases is one which is restricted to the admissibility of evidence only. Once opinion evidence based upon subjective evidence gets into the record without objection it may be considered by...
To continue reading
Request your trial
-
Wangen v. Ford Motor Co.
...damages to what it determines is a fair and reasonable amount for such kind of damages." The Powers rule, Powers v. Allstate Ins. Co., 10 Wis.2d 78, 102 N.W.2d 393 (1960), allows both the trial court and the appellate court to determine a reasonable award and to grant the plaintiff the opti......
-
Management Computer Services, Inc. v. Hawkins, Ash, Baptie & Co.
...the standard for appellate review of a circuit court's remittitur order in regard to compensatory damages in Powers v. Allstate Ins. Co., 10 Wis.2d 78, 102 N.W.2d 393 (1960), and extended the Powers rule to punitive damages in Malco, Inc. v. Midwest Aluminum Sales, Inc., 14 Wis.2d 57, 109 N......
-
Jehl v. Southern Pac. Co.
...v. Suhrmann, 8 Utah 2d 42, 45--46, 327 P.2d 826; Cordes v. Hoffman, 19 Wis.2d 236, 241, 120 N.W.2d 137. Cf. Powers v. Allstate Insurance Co., 10 Wis.2d 78, 87--92, 102 N.W.2d 393. Until Powers and Cordes, the Wisconsin practice concerning additur required the trial court to grant a new tria......
-
Blake v. Rupe
...ultimately granted Nagle's motion for a new trial on the issue of damages with an option to Toulon, pursuant to Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 102 N.W.2d 393, but denied the rest of Nagle's "We find the decision of the trial court on the postverdict motions to be persuasi......
-
Comparative Negligence
...807; Barnes v. Lehman, 118 Colo. 161, 193 P.2d 273. 11 Maus v. Cook, 15 Wis.2d 203, 112 N.W.2d 589; see Powers v. Allstate Insur. Co., 10 Wis.2d 78, 102 N.W.2d 393; Evanich v. Milwaukee Electric Ry. & Light Co., 237 Wis. 111, 295 N.W. 44. 12 Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55. 1......