Seifert v. Milwaukee & Suburban Transport Corp.

• Decision Date: 26 June 1958
• Citation: 4 Wis.2d 623,91 N.W.2d 236
• Parties: Francie SEIFERT, Plaintiff-Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, a Wisconsin corporation, Defendant-Appellant, and Richard H. Seifert and Iowa National Mutual Insurance Company, a foreign corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 236

91 N.W.2d 236

4 Wis.2d 623

Francie SEIFERT, Plaintiff-Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, a Wisconsin corporation, Defendant-Appellant, and Richard H. Seifert and Iowa National Mutual Insurance Company, a foreign corporation, Defendants-Respondents.

Supreme Court of Wisconsin.

June 26, 1958.

Kivett & Kasdorf, Milwaukee, Clifford C. Kasdorf & Allan M. Clack, Milwaukee, of counsel, for appellant.

Charne & Kops, Milwaukee, for respondent.

HALLOWS, Justice.

The court, FAIRCHILD, J., not participating, is evenly divided on the question of affirmance or reversal of that part of the judgment involving the issues raised by the defendant Transport Company with respect to negligence of the parties. This results in an automatic affirmance of the judgment of the trial court as to such issues. However, the court is not divided upon the questions relating to damages raised by the respondent by her motion for review.

The respondent seeks a review of the question of whether there was evidence to support the jury finding that the plaintiff suffered the loss of earning capacity in the amount of $5,229. On motions after verdict the court struck out this answer of the special verdict on the ground that it was based on conjecture and speculation. Upon reviewing the testimony we conclude the trial court was right. The evidence did not present a case where different inferences could reasonably be drawn from credible evidence. In such a case the finding of the jury should not be disturbed. Trautmann v. Charles Schefft & Sons Co., 1930, 201 Wis. 113, 228 N.W. 741. Czerniakowski v. National Ice & Coal Co., 1947, 252 Wis. 112, 31 N.W.2d 156. Here there was a failure of proof and insufficient credible evidence to sustain a finding of $5,229 for loss of earning capacity. The finding could only rest on speculation and conjecture. Verdicts cannot rest on such grounds. Boutin v. Cardinal Theatre Co., 1954, 267 Wis. 199, 64 N.W.2d 848.

The respondent urges that the trial court erred in disallowing as a matter of law certain doctor bills and hospital, ambulance and drug bills. This was done on the authority of Jewell v. Schmidt, 1957, 1 Wis.2d 241, 83 N.W.2d 487, where the services had been fully performed when the wife attempted to assume them and the court stated there was no consideration for the attempted assumption by the wife. The trial court construed this case to hold that unless there was an express contract between the wife and the doctor before rendering services to her, the husband is liable for such services and the wife cannot recover the cost of such services in her action.

Here the trial court correctly allowed the bill of Dr. Hansher, who was the wife's doctor before and during marriage, because she had always paid him on prior occasions for medical services rendered to her and he looked to her for payment. There was a contractual relationship existing between the parties. When Dr. Hansher rendered services to the plaintiff in the emergency period immediately following the automobile accident he could assume the plaintiff would pay him as in the past. Dr. Wynn, a plastic surgeon, and Dr. Johnson, and orthopedist, were called to the hospital a few hours after the accident by Dr. Hansher to help him and undertook to perform services for the plaintiff. At that time the plaintiff was in no condition to contract for the payment of their services. It is not expected nor should it be required of a member of the medical profession and a patient to make a contract while the patient is being prepared for surgery immediately following serious injury. Later and during the course of treatment the plaintiff told Dr. Wynn she would pay him for his services. Dr. Johnson's secretary, who had the authority to extend credit and arrange with patients for the payment of the doctor's bill, sent bills for his services to the plaintiff instead of to her husband. The evidence shows the plaintiff approved and ratified her doctor's action in retaining these specialists. In an emergency and under the special facts of this case the services of specialists called in by the plaintiff's attending doctor to help him should be treated for the purpose of the plaintiff's damages the same as the services of the attending doctor. We believe the trial court erred in not allowing Dr. Wynn's and Dr. Johnson's bills as elements of damages. The allowable damages for medical services are as follows: Dr. Hansher's bill...