Four issues are raised on this appeal:
1. Did the court err in allowing an orthopedic surgeon engaged by the defendant insurance company to be called as an adverse witness by the plaintiff?
2. Did the court err in failing, as requested by the defendants, to instruct the jury that no damages could be awarded for plaintiff's osteomyelitis?
3. Were the damages awarded to plaintiff supported by the evidence?
4. Should a new trial be granted in the interest of justice?
Calling Defendants' Doctor Adversely.
At the request of defendants' counsel, Dr. Alfred Kritter, an orthopedic surgeon, examined Kablitz, sent his report to those attorneys, and was then paid by Farmers Mutual. The trial court deemed him an agent of Farmers Mutual under sec. 325.14, Stats.,
In holding that Dr. Kritter was an agent of the defendant insurance company the trial court stated:
It is well established that the most-important factor in determining whether a person is an agent is the extent of the control retained over the details of the work.
Sec. 326.12, Stats., before the 1961 amendment, allowed the adverse examination before trial only of a party or of a person standing in certain specified relationships to a party, e.g., an agent of a party.
Sec. 326.12, Stats., as amended in 1961, was changed to conform with the federal rule on discovery before trial.
"A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also,
This rule permits the adverse examination on trial of an agent only if he is a special type of agent, i.e., a managing agent, as defined by the rule.
Even though the court erred in finding Kritter an agent and in permitting him to be called adversely, such error, to warrant reversal must have been prejudicial to Farmers Mutual.
Instruction as to Plaintiff's Osteomyelitis.
Appellants requested the court to instruct the jury that no damages could be awarded for respondent's osteomyelitis because there was no evidence that this condition was affected in any manner by the collision. This request was denied and the jury was instructed that no damages could be awarded for this pre-existing condition unless it was "brought into activity as a natural result of the injuries received in the collision."
The osteomyelitis condition involving his right upper thighbone was originally caused by a gunshot wound received in 1935. Kablitz was hospitalized for about eight months at the time of the accident, and only worked part time from 1936 until 1940. The condition reoccurred in 1940 and Kablitz was once more hospitalized, this time for over half a year. In 1946 or 1947 the wound again began to
Appellants' witness, Dr. Kritter, testified that "the overall course of osteomyelitis [would not] have been appreciably affected by any injuries received." He then testified, however, that "an injury such as this, if there was a good [pre-existing] pocket of pus, would accelerate the drainage."
In Leusink v. O'Donnell
"It is apparent from the record that the plaintiff, prior to the accident, had some disability in his left arm and left leg, resulting from some form of sclerosis. The medical reports in the record indicate that the plaintiff was suffering from a partial paralysis of the left arm and left leg after the accident. Plaintiff's disability, both before and after the accident, affected the same parts of his person and the same bodily functions. Therefore the extent to which his disabilities are attributable to the accident will be a question for the jury."
The expert testimony boils down to one flat assertion that the collision reactivated the osteomyelitis and one opinion
Appellants submit that the evidence does not support the damage awards of $6,950 for past and future wage loss, and $3,000 for past and future pain and suffering, and disability. The amount of damages awarded is a matter resting largely in the discretion of the jury. The verdict will not be upset merely because the award was large or because the reviewing court would have awarded a lesser amount, but rather only where it is so excessive as to indicate that it resulted from passion, prejudice, or corruption, or a disregard of the evidence or applicable rules of law.
The test for damages resulting from loss of wages is what the plaintiff's services might be worth to him in his ordinary employment.
In 1959 and 1960, when he made between 50 and 60 house calls a week, his total earnings were $5,889 and $6,084 respectively. In 1962 and 1963, when he could only make between 20 and 35 calls, his total income was $4,948 and $4,724 (eleven months) respectively. Thus Kablitz, who had a life expectancy of twenty-three years at the time of the trial, earned approximately $1,000 less in each of the two years subsequent to the accident than he did the two years before it.
Appellants, however, ignore the 1959-1960 income and argue that since Kablitz's average monthly earnings for the nine months preceding the accident are substantially the same as his present earnings, there was no loss. We disagree. A period of nine months is not fairly representative of his past average income and precludes the possibility of increased portrait sales due to the Christmas season, which would raise his overall earnings average. Even if his 1959, 1960, and 1961 incomes are averaged and compared with his present income, he would still lose between $400 and $500 a year. Considering his life expectancy, this loss alone would sustain the verdict.
The damages awarded for loss of wages can be sustained even if the osteomyelitis condition was not reaggravated by the collision. The testimony shows that this condition caused no permanent disability. The knee injury prevented him from climbing stairs and forced a reduction in the number of stops he could make in a week.
Appellants also take issue with the award of $3,000 for past and future pain and suffering, and disability. Both doctors agree that Kablitz suffered a permanent degenerative
Considering all the evidence, it cannot be said that the jury verdict in regard to wage loss or pain and suffering was unjustified.
New Trial in the Interest of Justice.
The power of this court to grant a new trial in the interest of justice, pursuant to sec. 251.09, Stats., is to be exercised only sparingly and with great caution.
By the Court.—Judgment affirmed.