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04/25/83 FELIX FANTIN v. JOAN M. MAHNKE AND BADGER

April 25, 1983

FELIX FANTIN, PLAINTIFF-APPELLANT,
v.
JOAN M. MAHNKE AND BADGER STATE MUTUAL CASUALTY COMPANY, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Milwaukee County: Ralph G. Gorenstein, Judge.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Decker

Felix Fantin appeals from a judgment granted in his favor after a jury trial which awarded him damages for an automobile accident in 1976. He contends that the trial court abused its discretion in refusing to allow a medical deposition to be read to the jury, that the verdict was perverse in failing to grant Fantin any damages for future pain and suffering, that the trial court should have found Fantin not negligent as a matter of law rather than submitting the question of his negligence to the jury, and that juror misconduct required a new trial. We are not persuaded by any of these arguments and accordingly affirm.

In the early afternoon of August 21, 1976, a car collision occurred at the intersection of 73rd and Morgan. The rear of a car driven by Joan Mahnke was struck by a car driven by Robert Haas as it was making a northbound left turn from Morgan on to 73rd Street. Fantin and his wife, Josephine, were in a car heading west on Morgan when the Mahnke vehicle was pushed by the impact into Fantin's traffic lane. Fantin did not stop in time and struck the Mahnke vehicle. Fantin and his wife were injured as a result of the collision.

At trial, the trial court refused to allow Fantin to have the deposition of Dr. Konstantine George read to the jury for the reason that it was cumulative to other medical testimony in evidence.

Testimony was given by a witness to the Fantin-Mahnke collision, Sally Iven, who stated that she heard the Haas-Mahnke collision, turned around to look, and saw Fantin's car 110-150 feet from the intersection. Fantin, on the other hand, testified that he did not see the Mahnke vehicle until it was five to ten feet in front of him.

Regarding Fantin's injuries, various testimony was taken. Dr. C. Hugh Hickey, who first examined Fantin four years after the accident, testified at Fantin's request that, in spite of Fantin's assertion that he had no hip or back trouble prior to the accident, Fantin was "on the road" to hip replacement with or without the accident. Regarding Fantin's arthritic back, Hickey testified that bridging and spurring of vertebrae existed as of 1972, four years before the accident.

Dr. Earl Krieg testified for the respondents that the arthritis in Fantin's back had been there since at least 1973, three years before the accident. He opined that the accident did not aggravate Fantin's pre-existing hip disease and that all the back problems that Fantin attributed to the accident were not so attributable.

The jury returned a verdict in favor of Fantin awarding him $6,500 for pain and suffering to date, $1,000 for medical expenses, $1,000 for loss of consortium, but nothing for future pain, suffering, and disability.

After the jury returned its verdict, an informal off-the-record Discussion with the jury, trial Judge and trial counsel transpired. Immediately thereafter, Fantin's attorney moved for a mistrial on the basis that at least one juror made an unauthorized visit to the accident scene. The trial court reserved its ruling until motions after verdict, at which time it denied all motions. Fantin appeals.

First, Fantin argues that the trial court abused its discretion in refusing to allow Fantin's attorney to read the deposition of Dr. George to the jury. We find no abuse.

Section 904.03, Stats., allows a trial court to exclude relevant evidence if its probative value is outweighed by a consideration of the needless presentation of cumulative evidence. Such a determination was made here. Exclusion of evidence under sec. 904.03 is a question of trial court discretion. See Featherly v. Continental Insurance Co., 73 Wis. 2d 273, 283, 243 N.W.2d 806, 814 (1976).

Our extensive review of the record shows no abuse of discretion. The deposition testimony of Dr. George is very similar to that of Dr. Hickey; both agreed that hip replacement surgery was necessary and both agreed that the arthritis pre-existed the accident. Fantin's brief notes that some of Dr. Hickey's testimony "goes much further" than Dr. George's; insofar as that is true, we will find no error where the excluded evidence is subsumed by more comprehensive evidence. Fantin argues however, that "Dr. George felt that the automobile accident was a 'triggering' mechanism for the pain," which diagnosis differs substantially from Dr. Hickey's statement that the hip surgery was inevitable with or without the accident. We cannot agree with Fantin's characterization of Dr. George's testimony as being at odds with that of Dr. Hickey. *fn1 We agree, therefore, with the trial court's exclusion of the deposition as cumulative, and hold that there was no abuse of discretion.

Next, Fantin argues that the verdict was perverse for failing to award him damages for future pain ...


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