Erdmann v. Milwaukee Automobile Mutual Insurance

122 N.W.2d 430, 20 Wis. 2d 439, 1963 Wisc. LEXIS 496
CourtWisconsin Supreme Court
DecidedJune 28, 1963
StatusPublished
Cited by13 cases

This text of 122 N.W.2d 430 (Erdmann v. Milwaukee Automobile 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
Erdmann v. Milwaukee Automobile Mutual Insurance, 122 N.W.2d 430, 20 Wis. 2d 439, 1963 Wisc. LEXIS 496 (Wis. 1963).

Opinions

Dieterich, J.

No questions of negligence are before this court. The only issue we need consider on this appeal is whether the damages awarded by the jury are excessive.

The relevant facts are that on September 15, 1958, the defendant, Herbert Rottloff, driving his automobile north on North Thirty-Fifth street in the city of Milwaukee, stopped at West Wells street for a red light immediately behind the automobile driven by the plaintiff, Petra Erdmann. When the light turned green Rottloff placed his car in motion and struck the rear bumper of the plaintiff’s car, injuring the plaintiff. The damages to the plaintiff’s car were minor, amounting to $27.

The record reveals the following testimony of Mrs. Erd-mann: That she is a widow, fifty years old at the time of the collision, and employed as a bookkeeper. Her health [442]*442was good before the accident. When the collision occurred her head was “jerked back and forth” and her “chest hit the steering wheel.”

After the accident she talked briefly to Rottloff and went home, at which time she became nauseated and her head, arms, and legs began to ache and her back hurt. She took aspirin, rubbed her neck, took hot baths and lay on an electric pad.

She was not able to sleep that night and the next day worked until noon. The following day she also worked one-half day after which she resumed working full time.

Mrs. Erdmann consulted a Dr. Reinke for the first time on September 29, 1958. He prescribed heat and massage which temporarily relieved her headaches and pain in her back. Upon further complaints of headaches, she was referred to Dr. Roncke, an eye doctor, for further relief of her headaches and dizziness. He examined her and sent her back to Dr. Reinke.

She was then referred in March of 1959 to Dr. Collopy. He took X rays and ordered traction, massage, and heat treatments. After four head-traction treatments she obtained a home-traction harness and used that on advice of Dr. Collopy. About a month and a half before the trial on July 5, 1962, she had to discontinue using the apparatus as it caused nausea and discomfort. At the time of the trial, she, pursuant to Dr. Collopy’s advice, would lie on the bed and allow her head to hang down. All these various treatments have been able to give only temporary relief.

Mrs. Erdmann changed jobs in April of 1959 in order to avoid work with an adding machine as it made her dizzy to use one. She is unable to sleep a full night without experiencing pain; her neck hurts when she turns her head from side to side, she experiences pain at the back of her neck when she holds her head in one position for a period of [443]*443time and has ceased to read. Since the accident she has not had one day of relief from these pains.

On cross-examination, Mrs. Erdmann testified that she had been in a second automobile accident July 16, 1961, while on a trip to Montana with some friends. She was not injured though the car was damaged. During the trip she and a friend would alternate driving every 100 miles. After driving for approximately an hour she experienced neck pains and headaches. Neck pain also occurred when she turned her head in either direction.

At the time the accident of September 15, 1958, occurred she lived at home with a son and kept house for the two of them. Since the accident she has made several trips by auto to Minneapolis to visit her son who was attending college there. She also drives to Oconomowoc frequently and drove to Fond du Lac at Christmas, 1959. During all these trips she continued to have neck pain and headaches.

Dr. Reinke, a general practitioner, testified substantially as follows: That he examined Mrs. Erdmann on September 29, 1959. She complained of pain in the back of the neck and in the midback, and when she turned her head she became dizzy and was in pain. His examination of her back and neck elicited pain. X rays were taken under his direction. No injury was revealed by the X rays. Considering her story of the accident and her subjective symptoms he made a diagnosis of “whiplash injury.” He prescribed heat treatments and massage. The last treatment occurred on October 20, 1958. No progress was made and he referred her to Dr. Collopy, an orthopedist.

On cross-examination, Dr. Reinke testified that the X rays did show a degenerative condition of the spine and some calcification near the right upper abdomen as a result of which he advised she have a gallbladder examination. The record, however, reveals no such examination.

[444]*444Dr. Collopy, an orthopedic surgeon, testified that Mrs. Erdmann gave him her history of the accident, the resultant pain, and the unsuccessful treatment prescribed by Dr. Rein-ke. She stated to him that she had headaches and awakened at night with a kink in her right shoulder and neck. Elis examination revealed some generalized tenderness on the right and left side of the neck; that forward and backward bending were within normal limits, but the extremes of bending produced pain as did rotation of the neck. X rays of the cervical spine showed some narrowing of the inner spaces of the cervical spine. An examination at a later date revealed muscle spasm in the trapezium muscle along the border of the neck. That degeneration of the cervical spine may or may not produce pain in and of itself. This can be determined from the medical history of the patient. Mrs. Erdmann’s medical history revealed no pain in the back until after the accident.

Dr. Collopy prescribed treatment consisting of traction to the neck, heat treatments, and massage. Later he prescribed a traction apparatus to be used at home. Her condition improved but did not clear up entirely. His diagnosis was that she had suffered a whiplash injury and that such injury did not clear up because of the pre-existing arthritic changes which were aggravated by the accident. In Dr. Collopy’s opinion, Mrs. Erdmann sustained some permanent disability which limits rotation of the neck and produces pain.

Dr. Elliot Coles, an orthopedic surgeon, testified for the defense. He examined Mrs. Erdmann on June 12, 1962. She related to him substantially the same medical history she had previously related to Dr. Collopy. Dr. Coles’ examination revealed tenderness to firm palpation over the cervical muscles in the back and pain caused by right and left lateral bending of the neck. X rays were taken and in Dr. Coles’ opinion did not reveal any narrowing of the in-tervertebral spaces of the disc. He did find early osteo-[445]*445arthritic lipping of the third segment anteriorly, which he said may have been caused by the accident. He also noticed a cervical rib on the right side which might account for Mrs. Erdmann’s symptoms. In his opinion she had long since recovered from the effects of the mild cervical strain sustained on September IS, 1958, and her continuing complaints could be explained to an anxiety tension state involving the muscles of the neck region and both shoulder girdles.

On cross-examination, Dr. Coles stated that most people over fifty years of age have some osteoarthritis in the neck. He said that the anxiety tension state could result from injuries sustained in an accident and that this anxiety would be indefinite in duration and as disabling as an obvious fracture.

The answer admitted the allegations of the complaint alleging that the plaintiff was free of negligence and did in no way contribute to the accident.

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Erdmann v. Milwaukee Automobile Mutual Insurance
122 N.W.2d 430 (Wisconsin Supreme Court, 1963)

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Bluebook (online)
122 N.W.2d 430, 20 Wis. 2d 439, 1963 Wisc. LEXIS 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erdmann-v-milwaukee-automobile-mutual-insurance-wis-1963.