Wenneman v. Royal Indem. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: Wenneman v. Royal Indem. Co., 251 Wis. 630, 30 N.W.2d 250 (Wis. 1947)
• Decision Date: 23 December 1947
• Parties: WENNEMAN v. ROYAL INDEM. CO.

251 Wis. 630

30 N.W.2d 250

WENNEMAN

v.ROYAL INDEM. CO.

Supreme Court of Wisconsin.

Dec. 23, 1947.

Appeal from a judgment of the Municipal Court of Outagamie County; Oscar J. Schmiege, Judge.

Reversed.

Action brought against Royal Indemnity Company, as defendant, by John Wenneman, as plaintiff, to recover damages for personal injury and other loss which he sustained as the result of a collision between his and another automobile, which was being negligently operated by Eugene Bislex, and upon which the defendant had issued an automobile liability insurance policy. The jury's verdict assessed plaintiff's damages at $700 for damage to his automobile; $223 for medical and X-ray expense, and $3,000 for pain and suffering; and his loss of earnings were fixed by the court at $133. On defendant's motions after verdict the jury's award for damages to plaintiff's automobile was reduced by the court to $550, but its award of $3,000 for plaintiff's pain and suffering was affirmed by the court, which entered judgment accordingly for plaintiff's recovery of a total of $3,906 as his damages. Defendant appealed from the judgment.

Benton, Bosser, Becker, Parnell & Fulton, of Appleton, for appellant.

Walter Melchior, of Appleton, for respondent.

FRITZ, Justice.

On this appeal defendant contends the court erred in sustaining the jury's assessment of $3,000 as the amount of the plaintiff's damages for his past, present and future pain and suffering as the result of injuries caused on June 20, 1946, by Eugene Bislex's negligent operation of an automobile which collided with plaintiff's automobile. He was duly waiting at an intersection for the change of a stop light when Bislex's automobile struck the rear of his automobile so violently as to suddenly knock it ahead for 90 feet with such force that it was badly demolished, and the front seat thereof was torn loose and plaintiff was thrown backward against the rear seat and then forward and knocked unconscious for about fifteen minutes, and finally fell out of the left front door, landing on his feet. He was hit on the back of the neck, and his back and the side of his head and his legs were badly bruised. He remained at the scene of the accident talking to Bislex and attending to the accident for approximately half an hour, and was then taken to the police station by the officers. While remaining there about fifteen minutes he phoned his doctor, Dr. Swanton, who arranged to see him at his office the next morning at 11 o'clock. Then plaintiff there received first aid treatment fo the abrasions and contusions to his legs.

Plaintiff testified that for five months later he had pain in his neck, ears and spine; that he had a dull pain in the neck bone above the shoulder, which he claims is constant, and also had pain in the lower part of the back; and that he suffered a loss of hearing and bled from an ear the second day after the accident, and about three times afterward, and his hearing was affected immediately after the accident and continued at the time of the trial, and he complains of a dull ache in his ear, which is constant, and a loss of hearing in both ears. Dr. Swanton testified he saw plaintiff seven times, the last being on September 6, 1946, and the only complaints made to him were of the abrasions and bruising of the legs and a so-called snap strain of of the neck muscles. Dr. Swanton had X-rays taken which showed no evidence of any injury. On direct examination Dr. Swanton was asked, ‘There was no complaint about the ear’, and he answered, ‘No’. But on cross-examination of Dr. Swanton by plaintiff's attorney, he testified:

‘Q. Doctor, in the treatment of Mr. Wenneman did you have occasion to make any treatment up around the ear? A. Yes.

‘Q. What was that? A. Sternocleidomastoid muscle * * *.

‘Q. That treatment which you gave him was in this area? A. Little lower. In here. Here is the neck muscle.

‘Q. Put any ___? A. Heat and rubbing.

‘Q. That was in this area? A. Yes.

‘Q. Right here? A. On this muscle and neck muscle.

‘Q. That is right in the immediate area of the ear, isn't it? A. Back of the ear, yes.’

On redirect examination: ‘Q. In your examination of Mr. Wenneman was there any evidence to indicate at all there was any injury to the ear? A. No complaint of the ear. I did not examine the ear-ear drum, I am speaking of.’

However, Dr. Swanton did send him to Dr. Quade, a...