Opinion
March 9, 1950 —
April 5, 1950.
APPEAL from a judgment of the circuit court for Sauk county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellants there were briefs by Langer Cross of Baraboo, and oral argument by Clyde C. Cross and H. M. Langer.
For the respondents there was a brief by Conway Conway of Baraboo, attorneys, and Walter D. Corrigan, Sr., and Thomas M. Corrigan, both of Milwaukee of counsel, and oral argument by Walter D. Corrigan, Sr., and Vaughn S. Conway.
Action by a husband and wife to recover damages for personal injuries sustained by the wife in an automobile collision. The case was tried to a jury and from a judgment on the verdict in favor of plaintiffs, defendants appeal.
Plaintiff Helen Chitek was injured when the parked automobile in which she was sitting was struck from the rear by an automobile parked behind her which in turn was struck by the automobile driven by the defendant William A. Rudolph and insured by the defendant General Casualty Insurance Company.
The liability of the defendants was admitted, and the limit of the General Casualty Company coverage stipulated to be $10,000.
The only questions submitted to the jury were those concerning damages resulting from the injuries sustained in the collision. The jury assessed plaintiff Helen Chitek's damages at $4,000 for personal injuries. The damages of Joseph Chitek for the services of Dr. Walsh were allowed by the court upon stipulation at $80. The jury allowed him $600 for expenses to which he was put on account of Mrs. Chitek's injuries, and $400 for loss of society and companionship.
Mrs. Chitek testified that she had had an injury in childhood which had left her with a stiff knee and which apparently resulted in a shortening of one leg and a scoliosis of the spine. There was also some arthritis in the spine, as evidenced by lipping on certain of the vertebrae. She further testified that she had five children living at the time of the accident and that she took care of them unassisted as well as all her housework, and that she suffered no pain whatever. She conceived and bore two children between the time of the accident and the time of trial. During this three-year interval she testified that she was unable to do the heavy work around the house and that she suffered pain in the neck and muscles of the upper back.
She was examined by Dr. Walsh, in front of whose home her car was parked when she was struck, and treated by him from that time (March 13, 1946) to the following August when she was referred to Dr. Wirka. Dr. Wirka testified that in his opinion the arthritis and scoliosis would account for Mrs. Chitek's complaints.
The appellants contend that there is not sufficient credible evidence to sustain the jury's verdict that the complaints of the respondent Helen Chitek resulted from the injuries, and that it is pure speculation to so hold in view of the fact that at the time of the accident she had a scoliosis of the spine and an arthritic condition.
Where the testimony is in conflict, the testimony of an expert being at variance with that of the respondent, it does not necessarily render the testimony of the respondent incredible.
Where the question was whether there had been a complete recovery, which objective symptoms indicated to the medical experts, and the plaintiff testified that he was suffering severe headaches, nervousness, irritability, difficulty in sleeping, impairment of memory, and was, because of his physical condition, unable to hold a job, it was held that the jury had a right to believe plaintiff's testimony and a verdict of $15,000 based upon such subjective symptoms was sustained. Kearney v. Massman Construction Co. (1945), 247 Wis. 56, 18 N.W.2d 481. There is no reason to accept a litigant's testimony of subjective symptoms which establish results and reject such testimony from which a jury may infer cause.
Where respondent, a woman thirty-five years of age, testified that she was the mother of five living children at the time of the accident and had always cared for them and done all of her housework, including laundry, baking, scrubbing, and housecleaning, even though she had a stiff knee and a scoliosis of the spine, and after the accident had pain in her neck and upper spine which made it impossible for her to put forth sustained effort or do heavy household duties, — the jury could properly infer that her physical disabilities resulted from injuries sustained in the accident. An award of $4,000 for such personal injuries, which the doctors testified were permanent in nature but in their opinion were due to arthritis, was not excessive.
The damages allowed to the husband were ample but not excessive.
Respondents contend that since the appellant Insurance Company stipulated to liability and agreed to pay damages to the extent of its $10,000 coverage, it cannot complain when the damages are under policy limits. Such a stipulation in our opinion merely concedes liability and puts respondents to their proof on damages. The liability thus admitted is only for legitimate provable damages which flow from the injury sustained in the accident.
By the Court. — Judgment affirmed.