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affirming an award of "lost time" damages based on a carpenter and contractor losing months of time "in which he could not work" and where he had "to hire an additional employee in 1962, who remains on the payroll today, to do the work he would have ordinarily done himself"
Summary of this case from In re Gen. Motors LLC Ignition Switch Litig.Opinion
March 2, 1966. —
April 12, 1966.
APPEAL from a judgment of the circuit court for Marinette county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellant there were briefs by Antaramian Antaramian and Richard B. Antaramian, and Heide, Sheldon, Hartley Thom, W. A. Sheldon, and S. Michael Wilk, all of Kenosha, and oral argument by Richard B. Antaramian.
For the respondents there was a brief by Eastman, Faller Pleger of Marinette, and oral argument by Ernest W. Pleger.
This action is here on appeal by plaintiff-appellant Charles Burlison from a judgment rendered on a jury verdict in a case involving a collision between two trucks. The court found defendant-respondent Glenn A. Janssen causally negligent as a matter of law in management and control of his truck. The jury found appellant causally negligent in management and control of his truck and apportioned negligence at 32 percent to Burlison and 68 percent to Janssen.
In addition to special damages agreed upon, the jury awarded appellant $4,500 for wage loss to time of trial, and $13,500 for personal injuries.
Burlison appeals from the determination of negligence on his part and the apportionment of negligence by the jury. Respondents Janssen, Reimer's Meat Products, Inc., and its insurance carrier have noticed a review of the damages.
On November 20, 1961, Burlison was returning to Middle Inlet, Marinette county, on Highway 141 from a deer-hunting trip near Mellen in his 1949 Dodge pickup truck. While he was traveling south on Highway 141 he stopped at a restaurant at the intersection of Highways 8 and 141. At the restaurant he met his companion, Francis Erickson. He also saw Janssen at the restaurant, but at that time they were strangers.
Burlison and Erickson determined to travel south on Highway 141 to a filling station on the west side of the highway, the whereabouts of which was unknown to Burlison. Erickson started out in his car, and Burlison followed. Janssen, who was driving a 1960 GMC refrigerated meat truck, owned by Reimer's, left shortly thereafter.
Erickson testified that when he was 250 to 300 feet north of the filling station's north driveway he signaled a right turn. He observed Burlison about 250 to 300 feet behind him respond by turning on his right-turn signal. As Erickson slowed to make the turn, the distance between his car and Burlison's truck diminished rapidly enough so that he was just able to get into the driveway safely. His car was on the filling station premises and parallel to the highway when he heard the squeal of brakes and the sounds of the collision.
Burlison testified to the same relative distances as Erickson. He also stated that he turned on his right-turn signal when he saw Erickson's signal flash. When Erickson began to slow down, Burlison slowed also. At this time he observed Janssen about 400 to 500 feet behind him, and as he approached the turn he observed that distance decrease very rapidly so that he felt it necessary to narrow the gap between Erickson and himself to less than he believed proper. He accomplished this by braking and then easing up on the brakes. When he arrived at the turn, he was moving at a speed which just allowed him to turn the corner without overturning. However, just before Burlison turned, Janssen took the right shoulder, and the trucks collided on the shoulder and the extreme west portion of the traveling surface of the highway.
Janssen testified that he had followed Burlison for about a mile when he noticed the Burlison truck slow, so he slowed also. He then noticed Burlison's brake lights flash just once, so he applied his brakes. Janssen saw no turn signal. The gap between the trucks closed, and Burlison's brake lights flashed again, so Janssen began braking harder. The gap was still narrowing, but Janssen could see no brake lights. He finally braked as hard as possible. When the vehicles were very close together, Janssen turned onto the right shoulder to avoid the collision, but Burlison turned right, and the trucks collided.
The Janssen truck left 111 feet of skid marks before they disappeared when they reached the right shoulder. Janssen was charged with violating a Marinette county ordinance requiring a driver to have his vehicle under control. He pleaded guilty and paid a fine of $32.80.
Burlison, who was thirty-nine years old at the time of trial, suffered neck and back injuries in the accident. Dr. Chester Sattler concluded that Burlison suffered from a chronic lumbosacral strain which would be permanent. Dr. James Regan testified that he could find no evidence of injury which would lead to residual disability. He felt that Burlison suffered a soft tissue strain from which he had recovered.
Burlison missed three months' work immediately after the accident. He was hospitalized four days in December, 1961, about a week after the collision. He then returned to the hospital for five days in April, 1964.
Burlison was unable to resume his normal activities associated with his contracting and carpentry business. He hired additional help to do the work he had been doing. However, he was unable to specify periods when he did not work and periods when additional help was necessary in the business.
The jury awarded $13,500 for personal injuries, and $4,500 for lost wages to time of trial, June 1, 1965. The court entered judgment on the verdict.
The issues involved on this appeal are whether there is any evidence to support the jury finding of negligence in management and control on the part of Burlison, whether the trial court erred in denying respondents' motion to reduce the damages for personal injuries, and whether the trial court erred in denying respondents' motion to reduce the damages for lost wages to none.
The rules invoked by this court in reviewing jury findings are clear and not disputed.
"The rule is well established that a verdict or a finding of a jury will not be set aside or disturbed, `if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding.' Van Galder v. Snyder (1948), 254 Wis. 120, 123, 35 N.W.2d 187. `The familiar rule, often declared by this court, that where there is credible evidence to support a finding of a jury we may not disturb it, needs no citation of authorities.' Mossak v. Pfost (1950), 258 Wis. 73, 75, 44 N.W.2d 922. It should be further pointed out, `on review this court must accept the credible evidence most favorable to sustain the verdict.' Dickman v. Schaeffer [(1960), 10 Wis.2d 610, 613, 103 N.W.2d 922]." (Footnote omitted.)
Bleyer v. Gross (1963), 19 Wis.2d 305, 307, 120 N.W.2d 156. See also Zweifel v. Milwaukee Automobile Mut. Ins. Co. (1965), 28 Wis.2d 249, 254, 137 N.W.2d 6, and Guinther v. Schucht (1965), 26 Wis.2d 97, 99, 131 N.W.2d 861, for more recent cases reciting these rules.
In looking at the credible evidence most favorable to respondent Janssen, several theories which would support a finding of negligence on Burlison's part suggest themselves. The jury could have concluded that Burlison did not signal his right turn. Both Burlison and Erickson testified that Burlison signaled. Janssen said he saw no signal. The jury could have resolved the conflict in favor of Janssen. Credibility of witnesses is peculiarly for the jury. Baker v. Northwestern National Casualty Co. (1963), 22 Wis.2d 77, 86, 125 N.W.2d 370; Hibner v. Lindauer (1963), 18 Wis.2d 451, 455, 118 N.W.2d 873; Anderson v. Deerwester (1960), 9 Wis.2d 428, 435, 101 N.W.2d 640.
Sec. 346.34 (1), Stats., requires that a proper turn signal be given before any deviation from a course of travel may be made. Thus, if the jury believed Janssen, as against Erickson and Burlison, that Burlison did not signal his intention to turn, negligence in that respect would be properly based.
" Turning. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in s. 346.31, or turn a vehicle to enter a private road or driveway unless the vehicle is in proper position on the roadway as required in s. 346.32, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. In the event any other traffic may be affected by such movement, no person shall so turn any vehicle without giving an appropriate signal in the manner provided in s. 346.35. Such signal shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning."
The jury might also have concluded that Burlison's actions in turning and just prior to turning constituted negligence. There is evidence in the record from which the jury could have concluded that Burlison braked, sped up, braked, sped up, and then braked very hard as he turned right unexpectedly at a high rate of speed. Such conduct could be considered to be unreasonable and imprudent under the circumstances.
Certainly, this conduct combined with the failure to signal, as the jury was entitled to find, is a sufficient basis for a finding of negligence. Burlison's own observations and admissions indicate that he was acutely aware of the impending danger from the rear. Under these circumstances the jury could have determined that the right turn could not be made with reasonable safety as required by the statute.
Sec. 346.34 (1), Stats., supra, footnote 2.
Respondent has also suggested that it was negligence for Burlison not to have either pulled onto the right shoulder or to have sped up and continued moving straight ahead since he was so thoroughly aware of the dangerous situation developing.
While the jury could have found Burlison free from negligence, we cannot say that there is no credible evidence to support the jury's finding. The jury had a right to believe Janssen's version of the accident, which it must have done in most respects, and this court will not interfere with its findings.
Burlison argues that the driver of a preceding vehicle owes no duty whatsoever to a following driver, since that driver is duty bound to have his vehicle under control at all times. However, it is clear that a preceding driver must properly signal his intentions to deviate from his lane of travel and must at all times use the roadway in the usual manner with proper regard for the welfare of all other users of the highway, whether driver, passenger, or pedestrian. Burlison did have a duty toward Janssen to use the roadway in the usual manner, and there is credible evidence in the record from which the jury could have found a breach of that duty, thus constituting negligence.
Thoresen v. Grything (1953), 264 Wis. 487, 59 N.W.2d 682, appears at first blush to impose no duty toward a following vehicle, but that case actually recognizes the duties to use the road in the usual manner, to signal before deviating, and not to stop suddenly without signal when there is time to signal. See Tesch v. Wisconsin Public Service Corp. (1957), 2 Wis.2d 131, 136, 85 N.W.2d 762. See also Campbell, Wisconsin Law Governing Automobile Accidents — Part I, 1962 Wisconsin Law Review, 240, 241.
In Fink v. Reitz (1965), 28 Wis.2d 319, 137 N.W.2d 21, we recently upheld a jury verdict, on somewhat comparable facts, finding the preceding driver 75 percent negligent and the following driver 25 percent negligent. In that case there were two conflicting stories. Plaintiff said she properly signaled a right turn, braked properly, and turned from the proper lane before being struck by the following car. Defendant testified that plaintiff gave a nondescript, dangling hand signal and moved into the center lane, which led him to believe she was going to turn left. Then she turned right suddenly. The jury was entitled to believe defendant's version and assess the percentages of negligence as it did.
Since apportionment of negligence is for the jury, we will not interfere with that determination unless the apportionment is grossly disproportionate.
Fink v. Reitz (1965), 28 Wis.2d 319, 322, 137 N.W.2d 21; Niedbalski v. Cuchna (1961), 13 Wis.2d 308, 318, 108 N.W.2d 576.
"`The trial court, which had the discretion to grant a new trial, considered the verdict fair, and there is nothing in the record to indicate that the percentages of negligence fixed by the jury are so grossly disproportionate as to justify this court in substituting its judgment for that of the jury and the trial court.'"
Milwaukee Suburban Transport Corp. v. Royal Transit Co. (1966), 29 Wis.2d 620, 631, 139 N.W.2d 595, quoting from Jankovich v. Arens (1952), 262 Wis. 210, 215, 54 N.W.2d 909.
As there, the jury's findings here must stand.
Respondents have raised the issue of damages by notice of review. They argue that Burlison did not sufficiently prove any damages for wage loss and that the award for personal injuries is excessive.
A plaintiff may recover damages for lost wages or lost time, but proof must be to a reasonable certainty. Moritz v. Allied American Mut. Fire Ins. Co. (1965), 27 Wis.2d 13, 133 N.W.2d 235.
Burlison kept no records of the days and hours which he could not work. Aside from the three months immediately subsequent to the accident in which he could not work, the periods when he could not work were estimated. Burlison testified that during the first six months of 1962 he missed about one month in two. Thereafter he could not work approximately one month in six. He testified that his income was $600 per month. He values his services at $3.80 per hour.
Burlison is a carpenter and a contractor. He is accustomed to having at least several men in his employ at all times. He testified that it was necessary for him to hire an additional employee in 1962, who remains on the payroll today, to do the work he would have ordinarily done himself. While Burlison produced no payroll records, he testified that the worker was paid at least $4.35 per hour in 1962 and at least $4.55 per hour since 1963. This is an expense of nearly $9,000 per year.
Burlison himself has done more administrative work, including bookkeeping, since the accident. He testified that if he were able to do more physical labor, as he was accustomed to doing, he would have had to hire somebody to do the bookkeeping he now does. He also testified that the business has expanded since 1962. Thus, the extra man is probably not spending full time doing what Burlison would ordinarily have done, but is likely spending considerable time on new work.
Upon this evidence the jury awarded Burlison $4,500 for lost wages to the time of trial — about three and one-half years after the accident.
This is not a simple case of wage loss or time loss, as respondents contend. Here, Burlison was a carpenter and contractor. He operated his own business and contributed capital, labor, and management supervision. He did not receive a stated salary. He withdrew such amounts from the business as were necessary to maintain himself and his family. He attempted to withdraw a bare minimum and leave as much capital in the business as possible. He apparently did not keep records which reflect informative detail.
Respondents did not contradict any of the evidence given by Burlison. Under the peculiar circumstances here we believe that the jury was entitled to award appellant $4,500. Even if we consider Burlison's estimates of time loss after the first three months subsequent to the accident as insufficient proof, not being to a reasonable certainty, he has still shown a wage loss of $1,800 and out-of-pocket expenses of over $30,000, all attributable to the accident.
While the proof is not documented, it does stand uncontradicted. Certainly, the reasonable cost of a bookkeeper and the amount of salary paid to the extra man attributable to work on new projects would have to be subtracted from the wage loss and out-of-pocket expense. Respondents did not attempt to prove these offsets but maintain only that appellant has not proved any wage loss to a reasonable certainty.
Burlison might well have suffered a substantial loss which he did not prove, but this is not to say that he has not proved to a reasonable certainty the $4,500 found by the jury. From the credible evidence offered by Burlison, and reasonable inferences drawn therefrom, the jury could conclude that he has suffered a financial loss of earning capacity in the amount of $4,500 to the date of trial.
The respondents also maintain that the award of $13,500 for personal injuries is excessive.
Burlison suffered a whiplash injury and lower back strain. The accident occurred on November 20, 1961. On the following day he was stiff and sore. He was able to go deer hunting on November 25th, but on the following day he experienced difficulty getting in and out of the car. His neck hurt when he moved it. He did not go to work on Monday, November 27th. He saw a physician on November 28th, and was hospitalized on December 12th for four days. Burlison continued to experience pain in his neck and back which prevented him from working on various occasions. He was restricted in bending and lifting.
Dr. Sattler was consulted on February 5, 1962, and has treated Burlison periodically since then. His reports indicate that the pain and immobility would vary from week to week. R became so bad in April, 1964, that Burlison was hospitalized for five days, and Dr. Sattler reported him totally disabled.
Dr. Sattler testified that Burlison suffered a 10 percent disability of the neck and moderate chronic lumbosacral strain which are permanent. Although Burlison experiences periods when his back is good, he has been totally disabled also. Dr. Sattler was of the opinion that his condition had actually worsened over the two and one-half years he treated him. Burlison was thirty-nine years old at the time of trial and has a considerable life expectancy.
Dr. Regan saw Burlison twice — on November 18, 1963, and on March 26, 1965. His opinion was that Burlison "had most likely sustained a soft tissue strain and I felt that he had been treated and that recovery had taken place." He also found nothing which would lead to residual disability.
On the basis of this evidence the jury awarded Burlison $13,500 for permanent injuries.
This court views the evidence on damages in the light most favorable to the plaintiff. Moritz v. Allied American Mut. Fire Ins. Co., supra, at page 22; Olson v. Siordia (1964), 25 Wis.2d 274, 284, 130 N.W.2d 827. Courts are reluctant to interfere with jury determinations of damages. Moritz v. Allied American Mut. Fire Ins. Co., supra, at page 22; 15 Am. Jur., Damages, p. 621, sec. 205.
While comparison with other verdicts is imperfect at best, we note that we have approved a verdict of $14,000 for not entirely dissimilar injuries in Lother v. Keller, ante, p. 403, 141 N.W.2d 181.
Under the evidence most favorable to Burlison we cannot say that the award of $13,500 is so high as to be deemed excessive, and thus warranting reduction.
By the Court. — Judgment affirmed.