Vinicky v. Midland Mut. Cas. Ins. Co.
| Decision Date | 06 June 1967 |
| Citation | 151 N.W.2d 77,35 Wis.2d 246 |
| Parties | Antonin VINICKY et al., Respondents, v. MIDLAND MUTUAL CAS. INS. CO., successor to Herman Mut. Ins. Co., Appellant. |
| Court | Wisconsin Supreme Court |
Allan & Storck, Mayville, for appellant.
Vaughn S. Conway and Kenneth H. Conway, Baraboo, for respondents.
Were the damages awarded to Smaha excessive?
The trial judge found that the damages were not excessive. We have previously held that:
'The trial judge has an advantage over the appellate court in that he not only sees and hears the testimony, which we can only read from the transcript, but he also has the same opportunity to observe the injured person as does the jury.' Makowski v. Ehlenbach (1960), 11 Wis.2d 38, 43, 103 N.W.2d 907.
In the recent case of Bentzler v. Braun (1967), 34 Wis.2d 362, 389, 149 N.W.2d 626, 641, we quoted with approval the statement appearing in Ballard v. Lumbermen's Mut. Casualty Co. (1967), 33 Wis.2d 601, 606, 148 N.W.2d 65, 68: "* * * we have repeatedly said that this court will view with particular favor a verdict that has the trial judge's approval."
In Kablitz v. Hoeft (1964), 25 Wis.2d 518, 525, 131 N.W.2d 346, 350, we stated:
'A damage verdict which has been approved by the trial court will not be disturbed if 'there exists a reasonable basis for the trial court's determination after resolving any direct conflicts in the testimony in favor of plaintiff (citing authority)."
Upon a review of the evidence relating to Smaha's personal injuries, and applying the standards outlined above, we conclude that there is a 'reasonable basis' for concluding that the damages are not excessive.
Smaha testified that he was unable to recall anything from prior to the accident until he work up in the hospital with pain in his chest and in the vicinity of the right ear. His son, Tony Jr., testified, as did one Hough, an occupant of a following vehicle, that Smaha was rendered unconscious. Dr. Otto Pawlisch, the attending physician, gave as his opinion that Smaha suffered a concussion and the force of the blow rendered him unconscious. The evidence is overwhelming that Smaha was unconscious for at least a short period of time.
Smaha testified that his dizziness persisted and has continued intermittently up to the time of the trial. He stated that shortly after the accident he was unable to drive an automobile without veering off to the right. His wife confirmed this testimony. There is evidence that Smaha is one of the luminaries of the world of circus entertainment, and the record is replete with exhibits and show billings evidencing his prominent place in the circus world. He has testified, and there is competent supporting testimony to show, that since the accident he has suffered dizzy spells, has a less sure sense of balance, has a less sure 'seat' when performing with horses. One of his more sensational stunts was the 'Capriole'--an act in which he was able to induce a horse to leap into the air with all four legs extended. Prior to the accident he was able to perform this feat without help, and he now requires two assistants.
Before the accident he was able to flick a cigarette from his wife's mouth with an 18-foot-kangaroo-hide bull whip. He testified that, after the accident, in attempting this he 'never was sure where the lash landed * * * (and) I cut up my wife.' He wisely has discontinued this stunt. He testified that he no longer has the patience to train animals, and his wife has so testified also. Other circus performers testified that his animals do not appear to be as well trained as before. He has also given up certain riding feats. One of these is the backward canter. On one occasion he felt dizzy, lost control of his horse, and he and his horse fell. In general since the accident 'things are different.' There is substantial evidence that following the accident Smaha lost his flair for showmanship. His wife stated that prior to the accident his showmanship was really something, but after the accident, 'He loses this.' Anthony Claude Robert Fossett, another circus performer, stated, 'I find a difference in his animals and in Tony Smaha himself.' He remarked that Smaha's showmanship 'wasn't as good as it was before.' He is more 'moody' and no longer laughs and jokes.
Mrs. Smaha testified that Tony used to be 'sweet' but now gets irritable and complains of headaches, has lapses of memory, and cannot concentrate. She has taken over the business management of the troupe.
The medical testimony is corroborative of the evidence presented by the lay witnesses. The attending physician stated that 'the dizziness is due to residuals of the accident.' Dr. Bernard Schaeffer testified that the accident was a competent producing cause of the post-accident complaints of the plaintiff. He testified that, '* * * this individual through a blow to the head, lost consciousness, and that is indicative of temporary malfunction of the brain.' He gave as his opinion that the disturbance of equilibrium would remain as a permanent disability. While there was evidence of arteriosclerosis, he testified that the disability resulted from the head injury sustained in the accident.
Even defense witnesses concluded that plaintiff's disability was 'a post-concussion syndrone' and, though they contended that there were other contributing causes, that the blow to the head could aggravate a condition of osteoarthritis. On cross examination the defendant's medical witness admitted that he found a diminution of sensation on the right side of the face and body, that reflexes were irregular and unequal, that there was a decrease in hearing and pain on motion and percussion. He concluded that the plaintiff had sustained a 'craniocerebral injury.'
On the basis of this evidence it is apparent that the jury could properly conclude that the plaintiff had suffered a permanent and disabling injury that impaired his performance as a circus artist, made him less patient and successful as an animal trainer, in general impaired his ability to enjoy his personal and family life, and diminished his pride in the artistry of his profession. While.$19,000 is a large sum to award for injuries when no loss of earnings was proved, this is a separate item of damages not directly related to the loss of earning capacity but equally compensible. In this instance we do not consider the sum awarded excessive, particularly in view of the fact that the trial judge reviewed the evidence and discussed comparable awards that have heretofore been approved by this court and expressly stated his approbation.
Were the damages awarded to Tony Jr. excessive?
We agree with the trial judge that the jury's award of damages to Tony Jr. were not excessive. We follow the same standard of review in this instance as we did in affirming the determination of damages in regard to Smaha. Tony Jr., then twelve years old, was a passenger in the car and sustained some physical injuries in the accident. The side of his face was swollen and his eye was nearly shut. However, his principal claim for damages is based upon emotional injuries and mental distress that he suffered at the time of the accident and subsequent thereto.
After the accident he saw his unconscious father and unsuccessfully tried to revive him. He testified that he thought that his father was dead. He was taken to the hospital, where he was sick to his stomach, was violent, and required physical restraint. Commencing with the first night after his release from the hospital, he has frequently has terrible dreams and nightmares. He stated:
His mother corroborated the intensity and frequency of these dreams, that travelling now makes him nervous, and that since the accident he has had greater difficulty in concentrating on his school work.
Dr. Pawlisch diagnosed his condition at the time of his confinement after...
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