In Diemel v. Weirich (1953), 264 Wis. 265, 58 N.W.2d 651, this court asserted that with regard to an injury which is subjective in character it is necessary that damages for a permanent injury or for future pain and suffering be supported by the opinion of a medical expert which is based upon either medical certainty or medical probability.Summary of this case from Huss v. Vande Hey
May 7, 1953 —
June 2, 1953.
APPEAL from a judgment of the circuit court for Oneida county: GERALD J. BOILEAU, Circuit Judge. Reversed.
For the appellant there was a brief by Schmitt Gullickson, and oral argument by Leonard F. Schmitt and August G. Eckhardt, all of Merrill.
For the respondent there was a brief by O'Melia Kaye, attorneys, and John F. O'Melia of counsel, all of Rhinelander, and oral argument by John F. O'Melia.
The plaintiff Ida Diemel was injured October 16, 1949, while riding as a guest in an automobile driven by her husband, Lyle Diemel, as a result of a collision between such vehicle and one operated by the defendant John J. Weirich at a country highway intersection. She instituted an action against Weirich and the defendant Farmers Mutual Automobile Insurance Company, which company had insured the car operated by the host-driver, Lyle Diemel, to recover her damages.
The case was tried to a court and jury, the trial commencing March 18, 1952. The plaintiff Ida Diemel testified that as a result of the impact of the collision she was thrown violently against the windshield resulting in both eyes being blackened and a big bump on her nose on the right side, some of which swelling she claimed to still have at the time of trial. In addition to these injuries to the face and head she sustained a sprained ligament of her right ankle and a bruising of her right leg. She further testified that she had been unable to do much of her housework since the accident, that her right leg still bothered her on occasion, and that she was still having bad headaches twice a week. Although she had been treated by two physicians for her injuries, neither was called as a witness at the trial, nor was any expert medical testimony offered in her behalf.
Counsel for the defendant Insurance Company requested in writing that the trial court submit the following instruction to the jury:
"You are instructed that, in computing the amount of damages for injuries sustained by Ida Diemel as a result of this collision, you are to allow nothing for future pain and suffering or for permanent disability."
The trial court refused to give such requested instruction. In the charge to the jury, the jury were instructed that they were to allow no damages for permanent disability, but the charge also contained the following instruction:
"In case the jury becomes satisfied by the evidence, to a reasonable certainty, that the plaintiff in any one of these four questions will in the future continue to suffer further similar loss or losses, or pain or discomfort or disfigurement, as the result of this injury, then you should take that into consideration and make a just compensation therefor."
The jury returned a special verdict in which both drivers were found causally negligent and the plaintiff Ida Diemel's damages for her personal injuries were fixed in the sum of $4,500. judgment was rendered in behalf of Ida Diemel on such verdict against the defendants under date of May 14, 1952, and the defendant Insurance Company has appealed from that part of the judgment which awarded damages to Ida Diemel. (The judgment also disposed of other causes of action arising out of the same accident.)
This appeal raises the issue of whether it was error for the trial court to refuse to instruct the jury that they could award no damages for future pain and suffering, as requested by counsel for appellant, and in instructing the jury in effect that it might award damages for future pain and suffering, but not for permanent disability. The appellant contends that this constituted error because of the absence of any medical testimony to substantiate plaintiff's claim, based on her own testimony of purely subjective symptoms, that she would have future pain and suffering as a result of her injuries received in the accident.
"In that case [ Wenneman v. Royal Indemnity Co. (1947), 251 Wis. 630, 30 N.W.2d 250], upon a review of the record, the court was compelled to conclude that the evidence did not admit of the jury's award as damages for plaintiff's pain and suffering caused by an accident, and it was there ruled in effect that the award allowed could be warranted only where sufficient evidence other than the unsupported subjective statements of plaintiff existed."
The general rule followed in other jurisdictions as well as Wisconsin, is well stated in 20 Am. Jur., Evidence, p. 649, sec. 778, as follows:
". . . where the injury is subjective in character and of such nature that a layman cannot with reasonable certainty know whether or not there will be future pain and suffering, the courts generally require the introduction of competent expert opinion testimony bearing upon the permanency of such injury or the likelihood that the injured person will endure future pain and suffering before allowing recovery therefor."
We believe that sound public policy requires adherence to such rule. It is a rare personal-injury case indeed in which the injured party at time of trial does not claim to have some residual pain from the accident. Not being a medical expert, such witness is incompetent to express an opinion as to how long such pain is going to continue in the future. The members of juries also being laymen should not be permitted to speculate how long, in their opinion, they think such pain will continue in the future, and fix damages therefor accordingly. Only a medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue. In the absence of such expert testimony (which was the situation in the instant case) the jury should be instructed that no damages may be allowed for future pain and suffering.
We, therefore, conclude that it was prejudicial error not to have given the requested instruction, and instead to have instructed the jury that they might take into consideration future pain and suffering in fixing the plaintiff Ida Diemel's damages.
Appellant raises other issues on the appeal. We have carefully considered the same but find no merit to appellant's contentions in respect thereto. We refrain from commenting thereon in this opinion because we believe that no useful purpose would be served thereby.
By the Court. — That part of the judgment appealed from is reversed and cause remanded for a new trial on the issue of damages only.