Albers v. Herman Mutual Insurance

117 N.W.2d 364, 17 Wis. 2d 385
CourtWisconsin Supreme Court
DecidedOctober 2, 1962
StatusPublished
Cited by7 cases

This text of 117 N.W.2d 364 (Albers v. Herman Mutual Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albers v. Herman Mutual Insurance, 117 N.W.2d 364, 17 Wis. 2d 385 (Wis. 1962).

Opinions

Wilkie, J.

The issues on this appeal are:

1. Is there credible medical evidence to sustain the jury’s finding of past and future pain, suffering, and discomfort?

[387]*3872. If such question be answered in the affirmative, are the damages awarded for such pain, suffering, and discomfort excessive?

3. If such damages are excessive, what is the proper option to extend to the plaintiff as an alternative to granting a new trial as to damages?

In the accident the plaintiff was thrown about in his car although he was not knocked unconscious. He was immediately hospitalized at St. Vincent’s Hospital in Green Bay and remained there for a day and a half, during which period his neck was placed in traction. X rays were taken and showed no fractures. After his release from the hospital the plaintiff stayed at home complaining of pain in his neck, the lower part of his back, and his left shoulder. Initially he made weekly trips to his family physician, Dr. Richard Jensen. Later these visits were monthly. In addition to visits to his own physician, the plaintiff received heat therapy and performed prescribed physical exercises at a Green Bay curative workshop. At the time of trial (November, 1961) the plaintiff was still under his physician’s care and at the trial the plaintiff still complained of pain in his neck, back, and shoulder. He stated that he could not rotate his head as far to the left as he could prior to the accident and further that he could not raise his left elbow above his left shoulder without pain.

The plaintiff testified that due to these physical limitations he was unable to pursue his usual occupation, that of an automobile mechanic. He was forced to acquire less-strenuous work. He testified that he could no longer hunt, “roughhouse” with his children, or do heavy household tasks such as he had done prior to the accident. He further testified that he had not had one continuous night of sleep since the accident because of the enduring pain. He stated that he had trouble driving long distances in his car. His [388]*388wife testified that he had difficulty turning his neck to observe when he backed up.

Two medical witnesses were called at the trial. The plaintiff’s attending physician and a general practitioner, Dr, Jensen, testified on behalf of the plaintiff. Dr. Albert L. Freedman, an orthopedic specialist, testified for the defense. Dr. Freedman examined the plaintiff on two different occasions prior to trial (February and October, 1961). The substance of the testimony of these men is as follows: Dr. Jensen stated that the plaintiff had a permanent injury to the fibrous or muscular tissue on the left side of the cervical and upper thoracic spine, consisting of scar tissue where fascial areas have been separated or torn, which caused Mr. Albers’ pain, but that he could not prove this by any objective findings. Dr. Jensen stated that the plaintiff had experienced muscle- spasms in the area of the cervical spine and in the left side of his neck. The last time there were specific findings of these spasms was in the summer of 1961. Dr. Freedman testified that on the two occasions that he examined the plaintiff he could- find no objective evidence of spasm or limitation of motion. He stated that If there were a limitation in motion of plaintiff’s left arm and shoulder there would be a finding of atrophy, a wasting away of the muscles involved. Neither he nor Dr. Jensen found any such atrophy. On his first examination Dr.- Freedman testified that the plaintiff had more grip in his right than in his left hand, though he was left-handed. He also stated that there was tenderness to pressure in the cervical spine and “the region over the left intervertebral musculature and also to the medial aspect of the left trapezius muscle.”

We find no merit to the defendant’s contention that there was no credible medical evidence to sustain the finding of the jury that the plaintiff suffered past and future pain, suffering, and discomfort.

[389]*389The plaintiff unquestionably was injured in the accident. He was -in the hospital for one and one-half days, during which time he was in neck traction. He did have muscle spasms for a period even after leaving the hospital, with accompanying pain and discomfort. We have already recounted all of his present complaints and the pertinent findings of the two doctors. On the question of permanent injury Dr. Jensen testified as follows (referring to an examination he made on September 23, 1961) :

“Q. Now, would you tell the court and jury what you found as a result of that examination, doctor? A. At the time of this examination, he still persisted with his pain in his left side of his neck and shoulder. He stated that his headaches, which were of course an initial part of -his injuries, had completely subsided. He still had difficulty in getting his left arm above his shoulder level without attempting to help himself with the opposite arm. He had, still, the tilting of his head to the left. I was unable to demonstrate any specific muscular spasm, however, at this time on the examination.”

He further testified:

“Q. So, doctor, on the basis of having seen and treated this patient for a period of eighteen months, have you been able to formulate a diagnosis as to what his trouble or condition is? A. I think my own opinion of this is that he sustained a quite severe whiplash injury originally to his neck. He has had, in view of observing him first on a weekly basis and monthly basis and seeing that although his original muscle spasm has subsided, he still has the aspects of pain on examination in the various areas and he definitely is limited somewhat in what he can do at his work. My own opinion is that he must have — the fact the pain has not subsided over an eighteen-month period — a permanent injury to the fibrous tissue or muscular tissue, fibrous tissue, of the cervical spine on the left side. . . .
“Q. I know you have stated your opinion. Now, I would like to pin down for the record: Do you have an opinion now based on a reasonable degree of medical certainty as [390]*390to whether or not the condition that you have related and found in the plaintiff, that is, relating to his neck, shoulder, and into his back, do you have an opinion as to whether or not that is temporary, or permanent? A. I have an opinion, yes.
“Q. Following that, what is your opinion? A. My opinion is that it is of a permanent nature.”

Under cross-examination, Dr. Freedman testified as follows:

“Q. Assuming involuntary muscle spasm as part of my hypothesis here, over a period of sixteen months; that there has been intermittent testing for the muscle spasm in those areas. Now, assuming that as part of my hypothesis — I am asking you to assume that in answering my question — for this continuous period of time, you have to then reach a diagnosis of a permanent injury to the soft tissue in the various areas I have indicated? A. I would say that, in assuming all of these factors, that there is a reason, you would have to say probably within the sixteen or eighteen-month period, there is in all probability a permanent thing.”

In view of the record, certainly there was sufficient evidence to support the jury’s finding of past and future pain and suffering in the instant case.

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Albers v. Herman Mutual Insurance
117 N.W.2d 364 (Wisconsin Supreme Court, 1962)

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Bluebook (online)
117 N.W.2d 364, 17 Wis. 2d 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albers-v-herman-mutual-insurance-wis-1962.