Backman v. Fitch, s. 39482

Citation137 N.W.2d 574,272 Minn. 143
Decision Date20 August 1965
Docket NumberNos. 39482,39505,s. 39482
PartiesBernard BACKMAN, Appellant, v. Clarence FITCH, Respondent. Clarence FITCH, Appellant, v. Bernard BACKMAN, Respondent.
CourtSupreme Court of Minnesota (US)
Syllabus by the Court

1. Where plaintiff in suit for personal injuries merely alleged that he was prevented from transacting his business and testified that the sources of his past income were from life insurance, boat and fishing equipment sales, and woods and guide work, and nothing in the testimony indicated the amount attributable to each of said sources of income, it is clear that he failed to specifically plead and prove the special damages he contends for as required under Rule 9.07, Rules of Civil Procedure.

2. The rule of the O'Leary case is not an absolute one. The jury may disregard the positive testimony of a witness even though he is not contradicted by other witnesses if his testimony is impeached and made improbable by reasonable inferences drawn from the surrounding physical facts and circumstances disclosed by the record.

3. This court will not interfere with a verdict unless the damages awarded clearly appear to be excessive or inadequate and to have been given under the influence of passion or prejudice. Whether a new trial upon the ground of excessive or inadequate damages should be granted or refused rests in the sound discretion of the trial court. The record herein does not support plaintiff's contention that the verdict in his favor was given under the influence of passion or prejudice.

4. The ordinary function of experts is to assist the jury in reaching a correct conclusion from the facts in evidence, and their opinions, therefore, are not ordinarily conclusive on the jury but constitute items of evidence to be considered by the jury along with the other evidence in the case. The modern tendency is to make no distinction between evidential and ultimate facts subject to expert opinion.

Olson, Kief & Severson, Bemidji, for Backman.

Powell & Dessert, Bemidji, for Fitch.

NELSON, Justice.

Two separate actions resulted from an accident in which an automobile driven by Bernard Backman collided with an automobile owned and driven by Clarence Fitch on a country road in Beltrami County, Minnesota, at about 9:30 p.m. on October 20, 1961. The drivers appeared as plaintiffs, and the two actions were consolidated for trial. The jury returned a verdict in favor of Backman against Fitch in the amount of $12,500 and denied recovery to Fitch.

Backman moved before the trial court for a new trial on the issue of damages only upon the grounds that the damages were insufficient. Fitch moved for a new trial on all issues upon the following grounds: (1) Irregularity in the proceedings by the defendant; (2) misconduct of the defendant; (3) surprise which could not have been prevented by ordinary prudence; (4) errors of law occurring at the trial; and (5) the verdict was not justified by the evidence or was contrary to law. Both motions were denied, the trial court attaching the following memorandum to his denial of Backman's motion:

'The court feels that although the verdict was a modest one in view of the fact that the jury found for the plaintiff, nevertheless the court is of the opinion that the amount awarded represented fair compensation for the injuries received, especially in view of the fact that by a subsequent operation the plaintiff would, according to the testimony, be able to perform his usual duties. (See Dziuk v. Loehrer, 266 Minn. 153, 123 N.W. (2d) 86 * * *.)'

The following memorandum was attached to the denial of Fitch's motion:

'It appears to the court that in this case there was a real serious dispute as to the negligence and contributory negligence, and the court feels that the matter was properly submitted to the jury, and that their determination should stand.'

Backman and Fitch each appealed from the judgment entered in his action and Fitch also served a notice of review under authority of Minn.St. 605.065 in the Backman case.

The pertinent facts surrounding the accident may be stated as follows: Bernard Backman, shortly after 9:30 p.m. on October 20, 1961, was driving his son's car on Beltrami County Highway No. 27, in a southwesterly direction, and at about the same time Clarence Fitch was driving his car in a northeasterly direction on the same highway. Each was alone in his automobile. The two vehicles collided near the crest of a hill on a 21-foot-wide gravel road. Fitch testified that he did not see Backman's auto or its headlights until an instant before the impact; that he was going 30 to 35 miles per hour at the time and was on the right side of the imaginary centerline of the roadway. Backman, on the other hand, testified that he saw the headlights from Fitch's automobile approximately 375 feet before the impact occurred; that he was as far to the right as he could be and still remain on the road; and that he could not drive off the edge of the road because of the rough character of the area. Backman further testified that he was going between 5 and 10 miles per hour at the time of impact and that Fitch's automobile was about 3 feet across to the left over the imaginary centerline at the time of the impact.

While the evidence is conflicting, the indications are that the cars came to rest about one foot apart, each being then on its own side of the imaginary centerline with the rear end of each car relatively close to the road's edge. Due to the relative positions of the cars as they came to rest, the jury might well have found the question of liability close, notwithstanding the fact that Fitch did not see Backman's vehicle until an instant before the impact.

Bernard Backman, aged 45, aside from minor temporary injuries in the form of a tenderness of the chest and a bruise on his left knee, suffered a broken left hip or what is technically known as a fracture to the neck of the femur. The fracture was reduced and then fixed by inserting a Smith-Peterson nail 4 days after hospital admission. After being confined for one month at the Bemidji Hospital, Backman was transported to the Veterans Hospital at Fargo, North Dakota, where it was discovered that the nail which had been inserted was not holding the fracture in proper reduction and further surgery was performed, using a portion of the hip bone, in medical terms called a Macewen's Osteotomy. This surgery was carried out January 8, 1962, Backman having spent time at home with his family during the Christmas holidays. Backman was confined to the Veterans Hospital for about one month following the second operation. This operation also failed to effect a bony union, and at the time of trial Dr. W. J. Deweese, the attending Bemidji surgeon, estimated the disability of the left leg to be 60 to 65 percent. Dr. William A. Kelly, the attending Fargo orthopedist, was not asked for a disability evaluation, but Dr. K. W. Covey, a consulting orthopedist, in a medical report estimated the disability at 50 percent. These three doctors felt that surgery was indicated but differed as to the operative procedure that would best enable Backman to return to his former employment. Dr. Deweese favored inserting a metal head or prosthesis into the shaft of the femur which he felt would preserve motion in the hip joint, give him a stable joint and good weight-bearing capacity. Dr. Deweese also pointed out that such a procedure would have the advantage of a short convalescence, because there is no waiting for bone to heal to bone, and weight-bearing would be possible about a month after surgery. He testified that although he felt the ultimate disability could be reduced to 50 percent such operations produced satisfactory results in 95 percent of the cases if recognition is given to the limitation of things to start with. Dr. Deweese pointed out that following the insertion of an artificial hip joint, although some motion might be lost, the patient could bend his thigh up to right angles to his trunk, could sit comfortably, and could walk up to a mile. In giving this testimony Dr. Deweese appears to have considered Backman's age, activities, and work in favoring that type of artificial hip. The two other orthopedists favored a fusion or arthrodesis of the hip joint. Dr. Kelly felt that in his condition at the time of trial Backman couldn't do manual labor, lifting, or prolonged walking, and that because of his occupation a stable and painless hip would be of great value. Dr. Covey felt that with a fused or stiff hip Backman could return to his heavy manual labor.

1. With reference to special damages, the medical bills totalled $3,387.78 including cost of ambulance, bills of Bemidji Clinic, nurses, Bemidji Hospital, and Veterans Hospital.

Dr. Deweese estimated that the future surgery he recommends would cost $250, the prosthesis $90 plus 1 month's hospitalization, a hospital cost comparable to that of the Bemidji Hospital which ran $927.98. The testimony by Dr. Kelly indicated that a fusion could involve hospitalization for as long as 3 months and rehabilitation for approximately 1 year. It is indicated that Backman plans on having further surgery if his leg doesn't improve.

Backman made the following allegation in his complaint:

'That as a result, plaintiff was bruised, contused, hurt and injured in and about his entire body; that he was caused to suffer and sustain a severe nervous shock to his entire system; that he incurred expense for medical attention, and will incur expenses for medical attention in the future, the exact amount of which have not been fully determined; was prevented from transacting his business in the past and will be prevented from transacting his business in the future; and was otherwise damaged.'

This pleading was followed by a demand for judgment against the defendant in the sum of $75,000.

No one contests the reasonableness of the past medical and hospital expenses and the...

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