Becker v. D & E Distributing Co.

• Decision Date: 17 November 1976
• Docket Number: No. 2--57313,2--57313
• Citation: 247 N.W.2d 727
• Parties: Daniel O. BECKER and Donna L. Becker, Appellees, v. D & E DISTRIBUTING COMPANY and Ronald D. Keilholtz, Appellants.
• Court: Iowa Supreme Court

Page 727

247 N.W.2d 727

Daniel O. BECKER and Donna L. Becker, Appellees, v. D & E DISTRIBUTING COMPANY and Ronald D. Keilholtz, Appellants.

No. 2--57313.

Supreme Court of Iowa.

Nov. 17, 1976.

Robert Tilden and Stephen J. Holtman of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellants.

Francis J. Pruss, Cedar Rapids, for appellees.

Heard by MOORE, C.J., and RAWLINGS, REES, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

In this litigation arising out of a two-vehicle collision the jury awarded plaintiff Daniel O. Becker damages for personal injuries. His wife, plaintiff Donna L. Becker, obtained judgment for loss of consortium. For purposes of this appeal defendants concede liability but challenge certain trial court rulings relating to expert testimony and submission of issues to the jury.

Following the collision on November 13, 1969 Becker was confined to Mercy Hospital in Cedar Rapids where he was treated by Dr. W. John Robb, an orthopedic surgeon. Dr. Robb diagnosed his injuries as a comminuted fracture of the left knee cap, a rib fracture, and a sprain of the lumbar spine. Following surgery to remove the knee cap Becker was discharged from the hospital November 25, 1969. He was readmitted December 27, 1969 for manipulation of the left leg under anesthetic to relieve adhesions and was again discharged December 30, 1969. He was not released to return to work until March 16, 1970.

Four months after he returned to work Becker was again seen by Dr. Robb for a 'foot problem' which in the opinion of the doctor was unrelated to the collision.

March 22, 1974, three days before trial, Dr. Marvin Douglas Marr, a podiatrist, first examined and treated Becker for pain he was experiencing with his feet. In Dr. Marr's opinion, the foot pains in part could be related to his leg injury incurred in the collision.

Dr. G. Douglas Valentine, a chiropractor, first saw Becker on December 6, 1973 and thereafter treated his spine. He expressed the opinion his patient had a permanent back injury resulting from trauma sustained in the collision.

The issues raised here relate to the testimony of these doctors. Defendants assert trial court erred 1) in overruling defendants' motion to withdraw from consideration by the jury any issue relating to a claimed injury to Becker's feet resulting from the collision and 2) in permitting a chiropractor to express an opinion there was a causal connection between an alleged permanent back disability and the collision in light of 'his lack of factual data, qualifications, and the possibility of intervening causes.'

I. Refusal to withdraw foot injury issue from jury consideration.

After evidence was closed defendants moved to withdraw from consideration of the jury certain claimed injuries to various portions of Becker's body, including his feet, because there was no 'competent credible evidence in the record to support the submission of any claim of permanent injury to any of those portions of the body.' Defendants further argued Dr. Marr was unable to allocate 'what part of the foot problem * * * he could attribute to the accident and what was the congenital problem and what was caused by the fracture of the foot bone.'

Trial court overruled this motion as it related to Becker's feet.

Although substantial evidence indicated there was a hereditary or congenital weakness in Becker's feet, this condition had caused him no difficulty or pain before the collision. Dr. Robb, who took no x-rays, described Becker as having 'flat feet'. Dr. Marr, the podiatrist, on the basis of examinations and x-rays, diagnosed Becker's preinjury condition as a non-locking talonavicular joint.

After the collision when he returned to his employment, which involved heavy lifting, Becker's feet began to pain him. In July 1970 he consulted Dr. Robb who diagnosed the condition as 'arch strain' unrelated to the collision. He prescribed shoe inserts.

However, Dr. Marr opined this foot distress 'could be' the result of the weakness and atrophy of the injured and long unused left leg muscles which caused Becker to carry his weight on his feet in an unusual manner, affecting his normal gait. Excessive rotation of the talonavicular joint which did not completely lock strained the plantar facie (a bundle of muscles in the bottom of the foot) producing an inflammation. This was greater on the left foot than on the right.

In 1973 Becker dropped a weight on his left foot, fracturing the second and third metatarsal bones.

Early in his testimony Dr. Marr stated the pre-existing condition, the injuries sustained in the collision, and the fractures several years later could all contribute to Becker's present foot problem. He was unable to state what percent of Becker's disability was attributable to each factor. Later in his cross-examination, when his attention was focused specifically on the subsequent fractures, Dr. Marr testified there was no connection between the fractures and Becker's present condition:

'Q. That's fine, but that fracture also could be a cause of this man's present condition? A. I doubt it.

Q. In no way? A. None that I can find.

Q. Okay. When you say that 60 pounds of metal dropped on the foot, you don't think it would affect the particular foot in any way at all? A. No. He elicits absolutely no tenderness in that particular area.'

Defendants' claim of error in submitting the foot problems to the jury has two grounds. They first assert the evidence and expert testimony disclosed only a possibility of causation, not a probability. Second, they contend plaintffs' expert could not approximate the percent of damages, if any, caused by the collision as opposed to other factors, thus permitting the jury to speculate.

In examining these grounds we apply several well-established principles.

In determining whether a jury issue is engendered trial court views the evidence in the light most favorable to the party against whom the motion was made regardless of whether such evidence is contradicted. Every legitimate inference which may reasonably be deduced therefrom must be carried to the aid of the evidence. If reasonable minds can differ on the issue it is for the jury. Schiltz v. Cullen-Schiltz & Assoc., Inc., 228 N.W.2d 10, 17 (Iowa 1975); West v. Broderick & Bascom Rope Company, 197 N.W.2d 202, 211 (Iowa 1972).

The weight and credibility of testimony are matters for the jury. Trapalis v. Gershun, 259 Iowa 775, 783, 145 N.W.2d 591, 596 (1966). This rule applies even though there are contradictions or inconsistencies in the testimony of a particular witness. Rehmann v. Balduchi, 169 N.W.2d 894, 896 (Iowa 1969); Houlahan v. Brockmeier, 258 Iowa 1197, 1201, 141 N.W.2d 545, 548, supplemented, 258 Iowa 1205, 141 N.W.2d 924 (1966); Youngwirth v. State Farm Mutual Auto. Ins. Co., 258 Iowa 974, 981, 140 N.W.2d 881, 885--886 (1966); see Kaltenheuser v. Sesker, 255 Iowa 110, 117, 121 N.W.2d 672, 676 (1963).

Turning to defendants' assertion the evidence indicated only a possibility of causal connection between the collision and the disability to Becker's feet, we note additional rules.

An expert may express his opinion either as to the 'possibility, probability, or actuality' of causation. Winter v. Honegers' & Co., 215 N.W.2d 316, 321 (Iowa 1974).

Evidence indicating a probability or likelihood of the causal connection is necessary to generate a jury issue. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 379--380, 101 N.W.2d 167, 170 (1960). However, this 'probability' may be inferred by combining an expert's 'possibility' testimony with nonexpert testimony that the described condition of which complaint is made did not exist before occurrence of those facts alleged to be the cause thereof. Winter, supra, 215 N.W.2d at 323; Chenoweth v. Flynn, 251 Iowa 11, 17--18, 99 N.W.2d 310, 314 (1959); Rose v. John Deere Ottumwa Works, 247 Iowa 900, 910, 76 N.W.2d 756, 761--762 (1956); see McCormick, Opinion Evidence in Iowa, 19 Drake L.Rev. 245, 260 (1970).

It was this failure to show there was no prior disability which caused this court to reverse a plaintiff's judgment in Bradshaw, supra, a decision relied on by these defendants. Bradshaw was already suffering from back trouble when he fell in the defendant hospital and allegedly incurred further spinal injury. In McClenahan v. Des Moines Transit Co., 257 Iowa 293, 300--301, 132 N.W.2d 471, 476 (1965) we pointed out these circumstances distinguished Bradshaw, supra, from Chenoweth and Rose, supra, and controlled the result.

Defendants equate Becker's pre-collision foot defects with Bradshaw's pre-existing back condition, reasoning in both cases the issue of the respective injuries should not have been submitted to the jury. But Becker's prior foot condition was asymptomatic before the collision and consequent leg injury. The evidence indicates it was not disabling in any way. The situation is therefore analogous to plaintiff's prior osteoarthritis in Rose, supra. This is simply an application of the familiar principle that a tort-feasor takes the person he injures as he finds him. McBroom v. State, 226 N.W.2d 41, 45 (Iowa 1975) andc citations.

The Rose-Chenoweth two-pronged test for submission of such an issue to the jury, most recently articulated in Winter, supra, 215 N.W.2d at 323, was met in this case.

On a related sub-issue, defendants assert the jury should not have been permitted to speculate on the extent of Becker's disability resulting from his foot pain when Dr. Marr was unable to apportion that disability between the collision and other contributing causes.

Our general rule limits a defendant's liability to compensation for injuries caused by his own acts of negligence, and not for injury, suffering or impaired health due to other causes. Waterloo Sav. Bank v. Waterloo, Cedar Falls & N.R.R., 244 Iowa 1364, 1375, 60 N.W.2d 572, 578 (1953). This principle does however have exceptions. For example, we have held tort-feasors...