Opinion
October 4, 1965 —
November 2, 1965.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellants there was a brief by Eisenberg Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Sydney Eisenberg.
For the respondents there was a brief by Arnold, Murray O'Neill, attorneys, and James P. O'Neill of counsel, all of Milwaukee, and oral argument by James P. O'Neill.
An action was commenced by the plaintiffs, Josephine and Fred Ketterer, to recover damages for personal injuries suffered by Mrs. Ketterer as a result of an automobile collision.
On June 21, 1960, the plaintiffs' car, while stopped at a railroad crossing in the city of Milwaukee, was struck from behind by an automobile operated by the defendant, Bonnie Maerker White. The testimony revealed that the right rear bumper of the plaintiffs' 1955 Mercury was pushed into contact with the body of the car. Fred Ketterer testified that he considered the damage "minimal" and never had the dent repaired.
Josephine Ketterer was born on August 18, 1899. She was a passenger in the right front seat of the automobile being driven by her husband at the time of the accident. Mrs. Ketterer testified that upon impact she went backwards, hitting her head on the seat, and then went forward, hitting her head on the side of the car.
Mrs. Ketterer was unemployed at the time of the accident, having taken a leave of absence from American Motors in 1957. She testified that she had planned to return to work at American Motors in September, 1960, but was unable to resume work because of this accident on June 21, 1960. Prior to the accident, Mrs. Ketterer had never requested or obtained a medical release respecting her fitness to recommence employment, although her family doctor, Roger H. Crane, testified that in his opinion she would have been able to have returned to work on June 17, 1960.
Mrs. Ketterer visited Dr. Crane, an osteopathic physician, one week after the accident, complaining of neck and back pains. She testified that she had "tremendous" pains in her back at all times which prevented her from performing her housework and that the pains were so severe that she consumed six to eight aspirins per day to ease her discomfort. Mrs. Ketterer stated that the pain in her neck disappeared after her first visit to Dr. Crane.
Dr. Crane had been treating Mrs. Ketterer for eighteen months prior to the accident. He testified that preceding the accident she had high blood pressure, multiple joint aches, and ankle edema, and that the diagnosis of "multiple joint aches" was probably consistent with arthritis. On May 9, 1960, Dr. Crane examined Mrs. Ketterer and noted that she was "having pain in low back; probably arthritis."
Dr. Crane examined Mrs. Ketterer after the accident, and his diagnosis was "acute traumatic arthritis of the sacral iliac joint and aggravation of existing spinal arthritis." He further testified that the X rays demonstrated a moderate degree of degenerative arthritis of the spine and degenerative disk disease, which were pre-existing conditions. He opined that these conditions were aggravated by the accident and were permanent.
In addition, Dr. Crane treated Mrs. Ketterer for arthritis of the knees and the dorsal from the time of the accident until the date of the trial.
Dr. Lester V. Salinsky examined Mrs. Ketterer, at the request of the plaintiffs' counsel, on the day before the trial. He testified that his diagnosis was that the patient had a sensitized low back and had sustained a soft-tissue injury to the neck and low back. Dr. Salinsky was also of the opinion that the degenerative arthritis was present prior to the accident. He stated that the trauma sustained to the head, neck, and back as of June 21, 1960, was sufficient to result in an aggravation of the pre-existing arthritis and that the injuries he diagnosed were of a permanent nature.
Dr. Harry B. Sadoff examined Josephine Ketterer for the defendants on January 10, 1964. He stated that his examination revealed that the patient had arthritis involving the neck, cervical spine, and lumbar spine which was of long-standing duration. Dr. Sadoff further testified that the patient's symptoms were the result of her arthritic condition, and in response to a hypothetical question, he testified that an injury superimposed on a condition of arthritis in the body will localize pain in that area and will prolong a person's recovery when treatment is given. However, Dr. Sadoff further vouched that a contusion will not cause degenerative arthritis because it is a physiological process in which trauma is not a factor.
Dr. Crane submitted a bill in the sum of $497.50 allegedly due for treatment to the plaintiff as a result of her injuries from the accident. However, evidence was also elicited to the effect that Dr. Crane treated the patient for other purposes as well during the same period for which the $497.50 was charged.
The court found the defendant driver negligent as a matter of law. The jury found this negligence to be causal and awarded the plaintiff, Mrs. Ketterer, $600 for pain, suffering, and disability, and awarded the plaintiff, Mr. Ketterer, $100 for damages he suffered as a natural result of injury to his wife.
It is urged upon this appeal that the jury's award of damages was inadequate and that this court should order a new trial with an option to the defendants for an additur. Parchia v. Parchia (1964), 24 Wis.2d 659, 130 N.W.2d 205; Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 102 N.W.2d 393.
The jury's evaluation of Mrs. Ketterer's injuries at $600 would not be sustainable if her ailments were all attributable to the accident in question. The record shows that Dr. Roger H. Crane had been treating Mrs. Ketterer for eighteen months before the accident and offered testimony as to the nature of her prior complaints. Dr. Crane expressed the view that the collision aggravated her arthritis; however, a contrary opinion was given by Dr. Harry B. Sadoff, who testified that trauma is not a causal factor in degenerative arthritis and also that trauma does not aggravate osteoarthritis.
As a result of the conflicting medical evidence, the jury was entitled to believe that much of Mrs. Ketterer's discomfort and disability was chargeable to a pre-existing condition. This would also apply to her husband's claim for medical expenses. Podoll v. Smith (1960), 11 Wis.2d 583, 106 N.W.2d 332. We cannot disagree with the trial court's observation that "the amounts allowed by the jury were within its province, under the evidence." In Wendel v. Little (1961), 15 Wis.2d 52, 58, 112 N.W.2d 172, we said:
"Inadequate damages by themselves do not establish perversity. Gustafson v. Engelman (1951), 259 Wis. 446, 49 N.W.2d 410. The trial court held that the damages were supported by the evidence and weight should be given to its opinion. Mossak v. Pfost (1950), 258 Wis. 73, 44 N.W.2d 922."
With reference to a loss of wages or of earning capacity, the record establishes that Mrs. Ketterer was not employed at the time of the accident and had not worked for several years prior thereto. While there is evidence that Mrs. Ketterer entertained an intention to return to her former employment, this remained very speculative, and the trial court, under such circumstances, was not obliged to submit a a question concerning earnings to the jury. Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis.2d 343, 350, 99 N.W.2d 163.
At oral argument, the appellants' counsel contended that Mrs. Ketterer did not receive a fair and impartial trial because of such conduct as the "hollering" of the respondents' counsel and the hostility exhibited by the trial judge. This issue was not specifically presented in motions after verdict to the trial court and was not even raised in the briefs submitted upon this appeal. Accordingly, the appellants are not entitled to our review of this question as a matter of right. Plesko v. Allied Investment Co. (1961), 12 Wis.2d 168, 107 N.W.2d 201; Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380. However, we have nevertheless scrutinized the record to determine the merits of this argument. Our review is somewhat limited since, obviously, the written report does not reflect the decibels used. We must conclude from the record that this contention on the part of the appellants has not been established.
By the Court. — Judgment affirmed,