Budden v. Goldstein

• Decision Date: 16 January 1957
• Docket Number: No. A--680,A--680
• Citation: 128 A.2d 730,43 N.J.Super. 340
• Parties: Vernon BUDDEN, Plaintiff-Respondent, v. Albert GOLDSTEIN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 340

43 N.J.Super. 340

128 A.2d 730

Vernon BUDDEN, Plaintiff-Respondent, v. Albert GOLDSTEIN, Defendant-Appellant.

No. A--680.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 10, 1956.

Decided Jan. 16, 1957.

Ruth Rabstein, Trenton, argued the cause for respondent (Pellettieri & Rabstein, Trenton, attorneys).

George Y. Schoch, Trenton, argued the cause for appellant (Irving H. Lewis, Trenton, attorney).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

In this automobile-pedestrian negligence action, the plaintiff, Vernon Budden, was awarded a jury verdict of $5,000. Defendant now appeals, asserting that a number of prejudicial errors were committed at the trial. These errors largely center about the issues of injury and damages. No attack is made upon the result so far as it disposes of the elements of negligence of the defendant and contributory negligence of the plaintiff.

Two of the grounds of appeal may be disposed of quickly. The principal injury claimed by the plaintiff was a hernia. In the course of discussion of the need for surgical intervention, one of the medical witnesses spontaneously referred to the emergency operation that President Eisenhower had just undergone while the trial was in progress. A mistrial was sought on the ground that the reference was prejudicial to the defense. The motion was denied and the court immediately and clearly instructed the jury that what had happened to the President had no bearing on the case and the observation about his operation should be disregarded entirely. Disposition of this type motion is left to the sound discretion of the trial court. An appellate tribunal will not interfere with his decision in the absence of a clear showing of mistaken use of his discretion. Schuttler v. Reinhardt, 17 N.J.Super. 480, 86 A.2d 438 (App.Div.1952); Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46, 58, 24 A.2d 371 (E. & A.1952). We find no such mistake here.

Next it is urged that plaintiff's counsel in summation addressed improper rhetorical questions to the jury about the amount of damages to be awarded. He said:

'* * * Now, I am not telling you how to arrive at your verdict, but you could probably ask yourself, what would I want if I was minding my own business, working, and somebody comes along and cracks into me and causes a hernia. What would I want for that injury? Would $5,000 be reasonable? Would $10,000 be reasonable? That is up to you what you think it is worth.'

No objection was made during or at the close of the summation. However, at the conclusion of the charge of the court, defense counsel requested that the jury be instructed to disregard the comment. On this appeal the refusal to so charge is cited as error, the argument being that whenever such a remark is made during summation, the court is under the duty to point out that it is not binding on them and that damages should be admeasured on the basis of the rule of law with respect thereto as given to them by the judge. Here again we are dealing with a discretionary matter and the record reveals no legal error. For the most recent judicial exposition on the subject of such comments by counsel in summation, see Botta v. Brunner, 42 N.J.Super. 95, 107, 108, 126 A.2d 32 (App.Div.1956). We think trial courts can and should be relied upon to keep these matters within reasonable limits.

The remaining assignments of error relate generally to the award of $5,000 for injuries suffered in the accident.

According to the evidence, plaintiff visited the hospital for first aid twice on the day of the mishap. He was given a rather complete physical examination and X-rays were taken but no injuries were found beyond some minor bruises and contusions of the legs and right wrist. A hernia did not appear. The hospital bill was $27.50. From that time to the date of trial, although Budden was examined on three occasions, at a cost of $25, he never had any further medical treatment, except to the extent that the wearing of a truss can be said to constitute treatment.

After the second hospital visit, while taking a bath at home in the early evening, he discovered a lump in the right groin. Thereupon he went to the office of his family physician who diagnosed a simple reducible right inguinal hernia. A truss was prescribed which had been worn during the intervening thirty months period.

No time was lost from work and the total out of pocket disbursements were $52.50. The cost of the truss was not proved.

The evidence was adequate to justify a finding by the jury that the hernia was produced by the mishap. And it appeared that since the accident there had been no change in size or reducibility. No complications whatever had developed. The plaintiff said the truss was uncomfortable and had caused a callus on his body. In describing his present complaints, he said:

'Actually there is no severe pain or anything. The only thing, if you get a cough it sends a million stars going out from your eyes. Occasionally if I do a piece of heavy work, I get the same way, stars, and I am awfully tired all the time.'

The family doctor opined that the hernia can be cured permanently by an operation. The testimony shows that Budden had had a successful operation on the other side of his body more than 20 years ago. In explaining the failure to submit to operation over the 30 months since this accident, he said he had nine children; the doctor had told him the operation would require an eight to ten weeks disability. During this time his only income would be $30 a week, presumably as a sickness benefit of some sort, and he could not take care of his family on that sum. He denied that he would rather wear the truss than have the operation; if he had the money he 'would rather have the operation.' Defendant's examining physician testified that Budden expressed a preference for the truss rather than the operation and he noted on his report 'apparently * * * afraid of an operation.' On the witness stand, plaintiff said: 'I don't believe I told him that.'

Medical proof was introduced to the effect that the expenses of the operation would run from $500 to $750 and that eight to ten weeks of work would be lost. His earnings were $100 weekly.

The charges of error arise out of the discussion by some of the medical witnesses of possible consequences of the hernia if an operation is not performed or if one is performed. Some of the testimony became part of the proof without objection, other parts of it were objected to. Examination of the entire record satisfactorily demonstrates that the basic problem was adequately presented to the court and ought to be considered on this review.

In the admeasurement of damages, it is well known that no recovery can be allowed for Possible future consequences of an injury inflicted by a wrongdoer. Bernadsky v. Erie R. Co., 76 N.J.L. 580, 581, 70 A. 189 (E. & A.1908); Houston v. Traphagen, 47 N.J.L. 23 (Sup.Ct.1885); 20 Am.Jur., Evidence, § 863 (1939); 25 C.J.S., Damages, § 149 (1941). In order for suggested future results to be includible as an element of damage, it must appear that they are reasonably certain or reasonably probable to follow. Kimble v. Degenring, 116 N.J.L. 602, 604, 186 A. 451 (Sup.Ct.1936); Wolcott, Johnson & Co. v. Mount, 36 N.J.L. 262, 272 (Sup.Ct.1873), affirmed, 38 N.J.L. 496 (E. & A.1875); 15 Am.Jur., Damages, § 24 (1938); 20 Id., Evidence, § 863; 25 C.J.S., supra, § 31, Annotation, 81 A.L.R. 423 (1932).

The A.L.R. annotation, supra, indicates that many of the authorities throughout the country use the expression 'reasonably certain' or 'reasonable certainty' as the test and consider 'reasonably probable' or 'reasonable probability' inadequate and erroneous; others accept the latter statement. Our cases do not seem to have dealt specifically with the question of whether the two have the same significance in relation to quantum of proof, and so may be used interchangeably. It seems to us that in a resolution of the conflicting interests involved, reasonable probability is the just yardstick to be applied. Basically, our view comes down to this: a consequence of an injury which is possible, which may possibly ensue, is a risk which the injured person must bear because the law cannot be administered so as to do reasonably efficient justice if conjecture and speculation are to be used as a measure of damages. On the other hand, a consequence which stands on the plane of reasonable probability, although it is not certain to occur, may be considered in the evaluation of the damage claim against the defendant. In this way, to the extent that men can achieve justice through general rules, a just balance of the warring interests is accomplished.

Reference to a portion of the cross-examination of defendant's medical expert will reveal strikingly how the distinction between possible and probable consequences of the hernia was ignored:

'Q. What Can develop with a hernia in the absence of an operation?

'Mr. Lewis: I object to that as purely speculative.

'The Court: Speaking generally now. You are speaking generally of what Could develop.

'A. Two things. A man without an operation should wear a truss, because if he doesn't wear a truss the hernia which is a simple hernia, If he were to do heavy lifting he Might get a descent into the scrotum and further discomfort.

'Q. What is the other? A. It is rare, but you Could get a thing called a strangulated hernia or incarcerated hernia, which is the same thing, which is a hernia and usually it has been present for many years in which it goes down into the scrotum and twists itself and that requires an immediate operation.

'Q. Could it cause peritonitis?

A. If you don't operate on them you Can get an inflammation of the bowel and peritonitis.

'Q. He Could have peritonitis? A. If you get incarcerated hernia where the hernia goes down into the scrotum it twists itself. It is...