Richie v. Badger State Mut. Cas. Co.

• Decision Date: 20 December 1963
• Citation: 125 N.W.2d 381,22 Wis.2d 133
• Parties: Fred RICHIE, Appellant, v. BADGER STATE MUTUAL CAS. CO., a Wis. insurance corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 381

125 N.W.2d 381

22 Wis.2d 133

Fred RICHIE, Appellant, v. BADGER STATE MUTUAL CAS. CO., a Wis. insurance corporation et al., Respondents.

Supreme Court of Wisconsin.

Dec. 20, 1963.

Charles Saggio, Milwaukee, for appellant.

deVries, Hollander & Vlasak, Milwaukee, for respondents.

CURRIE, Justice.

Plaintiff's appeal from the three orders was not perfected until June 3, 1963. Inasmuch as the appeal from the orders of October 9, 1961 and March 21, 1962 was taken long after the time for appeal had expired, defendants would have been in a position to have moved for dismissal with respect to these two orders if they had done so before participating in the appeal in this court. However, by participating in the appeal in this court, defendants have waived their right to object to the time-liness of the appeal. Secs. 269.51(1), Stats., and Estate of Bobo (1957), 275 Wis. 452, 456, 82 N.W.2d 328, and Monahan v. Wisconsin Dept. of Taxation, Wis., 125 N.W.2d 331.

Without making any attempt to appeal from the order of October 9, 1961, denying his motion for summary judgment, plaintiff voluntarily elected to proceed with trial before a jury. By a motion for directed verdict made during the course of trial plaintiff could have raised the same questions of law which were raised by the prior motion for summary judgment, thus rendering superfluous any reliance upon such prior motion. While this apparently presents a question of first impression in this court, we conclude that a party, who voluntarily participates in a trial of the action after denial of his motion for summary judgment without having appealed from the order denying the motion and without requesting a stay until such appeal has been determined, waives his right to appeal from such order. Therefore, the appeal with respect to the order of October 9, 1961, will be dismissed.

Defendants contend that the order of March 21, 1962 is not an appealable order. We agree. Such order required plaintiff to submit to a continuance of a pretrial adverse examination, and further required plaintiff to answer responsively certain certified questions. The order was thus one affecting a provisional remedy which is granted by statute and not by the court, and is not appealable. Hyslop v. Hyslop (1940), 234 Wis. 430, 291 N.W. 337. Accordingly, the appeal with respect to this order will also be dismissed.

We now turn to the principal issue presented by this appeal, viz., did the trial court abuse its discretion in finding that the jury's award of $7,500 for pain and suffering to date of trial and of $5,000 for future pain, suffering, disability and medical expenses, was excessive. See Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis.2d 568, 571, 117 N.W.2d 660, certiorari denied 373 U.S. 922, 83 S.Ct. 1522, 10 L.Ed. 423; Makowski v. Ehlenbach (1960), 11 Wis.2d 38, 44, 103 N.W.2d 907; and Blong v. Ed. Schuster & Co. (1956), 274 Wis. 237, 243, 79 N.W.2d 820. In order to properly resolve this issue it is necessary to review the pertinent evidence.

The accident occurred on Thursday, June 16, 1960 at about four o'clock in the afternoon, after plaintiff had completed his day's work as a janitor or sweeper at the plant of The Perlick Company, Inc. Plaintiff had been diriving his car on a public street and was stopped when he was struck in the rear by the automobile operated by defendant Hermann. The force of the impact forced plaintiff's car ahead so that its front struck another automobile directly ahead. Plaintiff was thrown forward so that the lower part of his chest struck the steering wheel and cracked it. The front seat of the car was torn loose from the car floor. His head was snapped forward and back and his cap was dislodged from his head. His right knee struck the dashboard violently. The nature of plaintiff's injuries as diagnosed by his physician, Dr. Verdone, on the Monday following the accident were: Severe contusion and sprain of right knee and hematoma of right thigh; abrasion of left leg; contusion of left arm and sprain and stiffness of the hand and fingers; discolored bruise mark on lower chest; acute sprain of back muscles; spasm in neck muscles due to temporary shortening of such muscles. Because plaintiff complained of headaches Dr. Verdone also diagnosed a concussion syndrome although there is no evidence that plaintiff lost consciousness after the accident.

Plaintiff testified that following the accident he had pain in his neck and head; that it hurt him to breathe; and that his right knee was swollen. He drove his damaged car home. Because of the ill effects of the accident his supper consisted only of a cup of black coffee. Later in the evening, however, he drove his car over to an automobile repair shop to have the damages to the car appraised for insurance purposes.

The following day, Friday, June 17th, he reported for work and put in his full eight hours although he claims he did not do much work. He also telephoned Dr. Verdone who had him report the next day at a hospital where a series of x-rays were taken. These disclosed no bone injury. On Monday following, Dr. Verdone gave him a complete physical examination. The doctor applied no bandages or dressings to any of the abrasions or bruises, but told plaintiff to keep hot compresses on leg and arm and rest as much as possible.

Plaintiff worked the entire week following the accident. The week following that he did not work because he had a week's vacation coming from his employer. Instead of going up north and fishing as he had previously planned, plaintiff stayed at home and kept hot compresses on his injured knee. He lost no time from his employment from the day of the accident until December 3, 1960, when he sustained his heart attack.

Plaintiff testified as follows with respect to the duration of his injuries and the pain and disability that still existed at time of trial (almost two years after the accident): The abrasion on his left shin healed in about a week. His left arm troubled him for about a month. The swelling of his right knee remained for about six months, but the knee still swells and bothers him on occasion. The headache he had immediately following the accident remained for about a month. He still has headaches but they are not as sharp as those following the accident. The stiffness in his neck remained for six or seven weeks. His back bothered him for a month 'or so,' and still bothers him if he goes up and down steps or walks too fast. The discoloration on his chest disappeared in about a month.

About seven weeks after the accident plaintiff had an inflammation of a vein in his upper right leg which Dr. Verdone diagnosed as a phlebitis, and which he testified was the result of the accident. According to Dr. Verdone this condition continued for about three months, while plaintiff testified it lasted for only six or seven...