Summary
In Blaisdell v. Allstate Ins. Co. (1957), 1 Wis.2d 19, 24, 82 N.W.2d 886, this court approved the trial court's instruction to the effect that the jury should consider such pain as the plaintiff suffered while conscious.
Summary of this case from Leibl v. St. Mary's Hospital of MilwaukeeOpinion
April 11, 1957 —
May 7, 1957.
APPEAL from a judgment of the circuit court for Eau Claire county: CLARENCE E. RINEHARD, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by Donald L. Farr of Eau Claire.
For the respondent there was a brief by Wilcox Sullivan of Eau Claire, and oral argument by Francis J. Wilcox.
On August 30, 1955, Marshall M. Blaisdell, executor of the will of Anna LaVelle, brought action against Allstate Insurance Company and Myrtle F. Schoenberg for damages for personal injury to Miss LaVelle.
Anna LaVelle, a pedestrian, was struck at about 9 o'clock the evening of February 13, 1955, by an automobile driven by Mrs. Schoenberg and insured by Allstate. She died about 4 o'clock the next morning. Plaintiff alleged negligent operation of the Schoenberg automobile. Defendants denied such negligence and alleged that Anna LaVelle had been negligent. At the trial all questions except damages were apparently resolved against defendants by the court. The question in the special verdict as to medical, hospital, and funeral expense was answered by the court so that the only question submitted to the jury was the following: "At what sum do you assess damages: (a) For personal injury to Anna LaVelle?" The jury answered "$5,000" and there were no dissents. Defendants moved for a change in the answer from $5,000 to $1,500 and in the alternative for a new trial because of error in the form of the question, because the finding of the jury was not sustained by evidence, was excessive, was perverse, and contrary to law. The court denied defendant's motions and on May 16, 1956, judgment was entered in favor of plaintiff for the damages found by the court and jury and for costs. Defendants appealed.
Notice of entry of judgment was served upon defendants' counsel May 25, 1956. Defendants served notice of appeal and bond on plaintiff's counsel and on the clerk of circuit court on August 13, 1956, and on the same date, served a copy of proposed bill of exceptions on plaintiff's counsel. No further action appears of record until December 24, 1956, when defendants applied to the court for an order enlarging the time for settlement of the bill of exceptions. Orders enlarging the time and settling the bill were entered the same day. The record was then transmitted here. On March 12, 1957, plaintiff served a notice of motion to dismiss the appeal upon the ground that it was not properly perfected within the time required by the statute in that the notice and undertaking were not filed with the clerk within six months after judgment and upon the further ground that the bill of exceptions was not settled until after the time for appeal had expired.
The evidence disclosed that Anna LaVelle was seventy-eight years old, unmarried, and had been alert, and well able to get around. She had been visiting at the home of a friend and was struck while crossing the street at an intersection near her friend's home. The Schoenberg car was going about 20 miles per hour; the driver did not see her before she was hit, and the brakes were not applied until after she was hit. She lay on the street for ten or fifteen minutes and was then put into a station wagon by three police officers and taken to the hospital. This was shortly after 9 p. m. and she died at the hospital at 4 a. m.
One of the officers tried to talk with her. He said she was conscious, but irrational at times; that she moaned a few times. The other two officers took measurements at the scene. They could not recall anything she said or any sounds she made. She had a big bump on her head, which was bleeding, and her right side was hurt.
Plaintiff was related to Miss LaVelle by marriage and thought of her as his aunt. He was called to the hospital about 10 p. m. and sat with her until she died. Phlegm and blood kept coming from her mouth and he kept wiping it off; she seemed to recognize him, but that was about all; she kept moving the upper part of her body and indicating that the lower half hurt her. She continued moaning, and she perspired from her forehead. She kept asking for pain pills. The nurses gave her something once, but it did not seem to relieve her. He estimated she was about half conscious. She settled down about a half or three quarters of an hour before she died. During the night she received the last rites of her church.
Her doctor did not see her before her death, but X rays taken afterward showed severe fractures involving both pubic bones at the center and front, and a fracture through the right hip socket and displacement of the femur. The sciatic nerve was close to the hip break. He testified that breaks of that type would be very painful; that so far as he knew she never really recovered full consciousness and did not recover from a state of extreme shock; that a person in shock or partially conscious is not as alert or aware of pain as he would be if in a normal state. He signed a death certificate stating that she died as a result of traumatic shock due to the hip and pubic fractures.
Defendant's counsel orally requested that "The question be submitted as to what damages she sustained by reason of conscious pain and suffering." The court did not adopt the suggested language, but in connection with the question as to personal injury instructed the jury to "name such sum of money as you are satisfied to a reasonable certainty by the preponderance or greater weight of the credible evidence will in your honest and deliberate judgment fairly and reasonably measure the total or entire amount of such true and just damages as were sustained by Anna LaVelle during her lifetime for any discomfort, pain, or suffering, both bodily and mentally, which are the consequences or results of injury sustained at the time in question, excluding all mental or physical conditions or infirmities attributable to other causes. In making any allowance for her pain and suffering you should consider such conscious pain as she suffered while she was in a conscious state and capable of feeling or suffering pain. It does not include any time when she was unconscious. Such damages are for pain and suffering while she was capable of enduring pain which necessarily implies consciousness."
The proposed bill of exceptions was served within the prescribed ninety-day period. The order extending time for settlement may therefore have been unnecessary, but in any event, respondent did not appeal from either the order extending the time nor the order settling the bill. Erroneous settlement of a bill of exceptions would not be ground for dismissal of an appeal.
The notice of appeal and bond for costs were served within. six months after judgment. The appeal was perfected in time (sec. 274.11, Stats.) notwithstanding failure to file the originals with the clerk. Supreme Court Rule 4 (sec. 251.254) requires that appellants cause the record to be transmitted to this court within twenty days after the appeal is perfected and they were late in doing so. Respondent does not assert, however, that he has been prejudiced. It appears that settlement negotiations were in progress and that appellants delayed because the return of the record would be unnecesary [unnecessary] if a settlement were reached. The motion to dismiss is denied.
Appellants argue that the form of the question in the special verdict was erroneous. They assert the questions should have been asked in terms of "conscious pain and suffering" rather than "personal injury." It would have been better, we think, to have used the more exact terms, although the terms used were not erroneous, when considered in the light of the instructions heretofore quoted.
Appellants further assert that the award of $5,000 for the pain and suffering experienced by Miss LaVelle is not supported by the evidence and we agree.
Accurate assessment of money damages for pain and suffering is difficult. In making an award after the death of an injured person, it is especially hard to exclude from one's mind other factors involved in the loss of life which go beyond pain and suffering endured from the time of injury up to the instant of death. Of course, this issue is primarily for the jury, yet it is well established that even in the absence of error upon the trial, or apparent perversity of the verdict, the court must apply its own standards of the highest (or the lowest) award which it considers is supported by the evidence in the particular case. Blong v. Ed. Schuster Co. (1956), 274 Wis. 237, 242, 79 N.W.2d 820. In the case before us, the trial court evidently was satisfied that the evidence supported the award, because it granted judgment upon the verdict. We should, and do, give weight to approval of the verdict by the trial court, but must nevertheless review that action.
In the 1920's this court wrestled with the problem of measuring in money the pain and suffering experienced in the interval between injury and death when that interval is relatively short. A very conservative view was adopted. In Wasicek v. M. Carpenter Baking Co. (1923), 179 Wis. 274, 191 N.W. 503, a jury award of $2,625 for three hours of conscious pain and suffering, deadened by opiates, was reduced to $500 as the highest amount that could be allowed under the circumstances. In Rogers v. Lurye Furniture Co. (1927), 193 Wis. 496, 503, 211 N.W. 782, 215 N.W. 457, three days intervened between injury and death. Deceased was unconscious at first, but regained semiconsciousness for much of the time. The jury awarded $8,500 for pain and suffering; the trial court reduced it to $2,000. This court said the case was ruled by the Wasicek Case and that $500 was the highest amount an unprejudiced jury could reasonably find. In Theby v. Wisconsin Power Light Co. (1929), 197 Wis. 601, 222 N.W. 826, 223 N.W. 791, the jury awarded $2,800 for thirty hours, "not complete unconsciousness" and a "considerable amount of pain." This court relied on the Wasicek and Rogers Cases and allowed $750 as the largest amount warranted. In Prange v. Rognstad (1931), 205 Wis. 62, 236 N.W. 650, the jury awarded $1,000 for three hours of conscious pain and suffering. The award was held excessive "under the rule" of the Wasicek and Rogers Cases.
Thereafter this court began to relax its view to some extent. In Warrichaiet v. Standard Oil Co. (1934), 213 Wis. 619, 252 N.W. 187, the jury awarded $2,000 for intense pain and suffering for twenty-four hours. The trial court reduced the award to $750, presumably because of the earlier cases in this court. This court sustained the reduction, but did comment that $750 "was certainly not excessive," and listed cases from other jurisdictions where very substantial awards had been allowed to stand.
In Nygaard v. Wadhams Oil Co. (1939), 231 Wis. 236, 284 N.W. 577, the jury awarded $2,000 for ten hours of conscious pain and suffering. The trial judge cut the award to $750, but this court stated that the reduction was error and referred to the higher awards from other jurisdictions cited in the Warrichaiet Case. In Hamilton v. Reinemann (1940), 233 Wis. 572, 290 N.W. 194, the award was $500 for conscious pain for one hour and twenty minutes. Counsel sought to compare awards on an hourly basis. Mr. Justice WICKHEM said at page 582, "We think that defendants are too mathematical in their approach to this subject, and that conscious pain and suffering cannot be reduced to an hourly basis. It is extremely doubtful if it can be reduced to any formula that will constitute a satisfactory rationale for other cases."
The degree of consciousness, severity of pain, and apprehension of impending death have all been mentioned as important elements for consideration, along with duration. It is also true that a very substantial change in the purchasing power of the dollar has occurred since the decisions referred to. While it is our view that the evidence does not support the award of $5,000, we do consider that there is a substantial range between the highest and lowest amounts which it would support. This is true because of the widely different interpretations which could be legitimately drawn from the evidence as to Miss LaVelle's degree of consciousness and indications of severe pain. The highest amount that an unprejudiced jury, properly instructed, would, under the evidence probably assess is, in our opinion $3,500. The least amount is $1,500 or less. We need not consider a smaller figure because appellants indicated a concession, by their motions after verdict, that the evidence would have supported $1,500. Defendants should have the option, within twenty days after the remittitur, of suffering judgment against them which shall include (in addition to special damages and costs) the sum of $3,500 for damages for pain and suffering. If defendants do not exercise their option within twenty days, plaintiff should have the option within the following twenty days of taking judgment which shall include (in addition to special damages and costs) the sum of $1,500 for damages for pain and suffering. If neither option be exercised, there must be a new trial as to this element of damages.
By the Court. — Judgment reversed in so far as it awards $5,000 for pain and suffering, cause remanded for further proceedings in accordance with this opinion.