Hutchinson v. City of Oshkosh

Wik’slow, 0. J. The only contention made by tide appellant is that the damages allowed are excessive. The argument is that hy itemizing her claims for damages in her claim filed with the city clerk and in, her complaint the plaintiff has limited herself to the amounts so claimed, i. e. that she can recover no more than $1,000 for pain and suffering, and consequently that, if the verdict he sustained, she in fact recovers $4,000 for damages resulting from inability to carry on her business, which sum is said to be grossly excessive. Conceding, without deciding, that the appellant’s contention as to the effect of the itemizing of the claim is sound, we are not able to agree with the conclusion that' the damages must be held excessive. It appears with sufficient certainty from the evidence that the plaintiff, though married, had carried on for some years a dressmaking business of her own in a shop separate from her home, from which she realized net earnings of about a dollar a day through the year, and that since the injury she has not been able to carry on the business; that her injury was a severe wrench of the right foot and ankle, which after months of treatment resulted in a permanent fixation of the ankle joint and of the large tendon on the back of the leg, accompanied by a permanent bending back of the toes, making it impossible for her to operate a sewing machine with that foot, as well as impossible to wear an ordinary shoe or to walk normally. The evidence that this is a permanent condition without probability or even possibility of material improvement is ample. Row if it be granted that the jury could only allow $1,000 for physical pain and suffering, past and present, and hence that it must be considered that $4,000 was allowed for the other items of damage claimed in the complaint, we still do not think this sum must be condemned as excessive. These items were, $2,600 for damages by reason of the inability to carry on her business, and $2,000 for the deformity, disfigure [144] ment, permanent injury, and impairment of the limb. So far as “permanent' injury and impairment” included in this-latter item is concerned, that element is probably legally included in the item of damages by reason of inability to carry on her business, but the element of mental suffering or chagrin on account of her deformity (and this is what we understand the item to cover) is certainly not so included, and this constitutes a well known element of damage in such cases. Heddles v. C. & N. W. R. Co. 77 Wis. 228, 46 N. W. 115; Nichols v. Brabazon, 94 Wis. 549, 69 N. W. 342. In order to sustain the verdict it must be assumed that the jury considered, as they properly might, this element of dam-age and allowed a substantial sum therefor. This would reduce to that extent the amount allowed for the element of loss of- earnings, past and future, by reason of her inability to conduct her separate business. In this view of the case we find it quite impossible to say that the damages were excessive. Her business was established and fairly lucrative. She was only a little over forty years of age. That business might be reasonably expected to continue to bring her returns for many years. It was her own separate business and the profits are secured to her by statute, as well as the right to recover in her own name damages for any injury to her earning power in the business. Secs. 2343, 2345, Stats. 1913. By the Gourt. — Judgment affirmed.