Carpenter v. Nelson

• Decision Date: 11 March 1960
• Docket Number: No. 37740,37740
• Citation: 257 Minn. 424,101 N.W.2d 918
• Parties: Robert Wallace CARPENTER, a minor, by and through Leon Carpenter, guardian ad litem, Appellant, v. Roy NELSON, Respondent.
• Court: Minnesota Supreme Court

Page 918

101 N.W.2d 918

257 Minn. 424

Robert Wallace CARPENTER, a minor, by and through Leon Carpenter, guardian ad litem, Appellant, v. Roy NELSON, Respondent.

No. 37740.

Supreme Court of Minnesota.

March 11, 1960.

Syllabus by the Court.

1. In the ordinary civil action the plaintiff has the burden of proving every essential element of his case, including damages, by a fair preponderance of the evidence. This burden is not affected by the rule that in order to recover for prospective damages it must be shown that such damages are reasonably certain to occur as a result of the original injury. The distinction lies in the ultimate fact to be proved and the quality or quantum of evidence required to prove that fact. Held that the trial court committed prejudicial error in instructing the jury that the plaintiff must prove future or permanent injuries by a reasonable medical certainty rather than by a fair preponderance of the evidence to a reasonable certainty.

2. Expert medical evidence is not the exclusive means of proving future damages or permanent injuries. Consequently, when instructing as to the right to recover for prospective damages the phrase 'reasonable certainty' rather than 'reasonable medical certainty' is to be used. The word 'medical,' as used in the phrase 'reasonable medical certainty' in Dornberg v. St. Paul City Ry. Co., 253 Minn. 52, 60, 91 N.W.2d 178, 185; Derrick v. St. Paul City Ry. Co., 252 Minn. 102, 108, 89 N.W.2d 629, 633; and Penteluk v. Stark, 244 Minn. 337, 340, 69 N.W.2d 899, 901, is withdrawn.

Naughtin & Naughtin, Hibbing, for appellant.

Manthey, Carey, Manthey, O'Leary & Trenti, Virginia, for respondent.

DELL, Chief Justice

This is an action for personal injuries sustained by Robert Carpenter, a minor, and for special damages incurred by his father, Leon Carpenter. ¹ The jury returned a verdict in favor of the plaintiff in the sum of $1,385. Plaintiff appeals from an order denying his motion for a new trial on the issue of damages.

On June 27, 1957, Robert, a 17-year-old boy (hereinafter referred to as the plaintiff), sustained injuries while riding as a passenger in the front seat of an automobile being operated by a friend, Roger Mayry. While the Mayry vehicle was stopped at a stop sign at the intersection of State Highway No. 7 and State Highway No. 216, in St. Louis County, it was struck from the rear by a vehicle owned and operated by defendant. At the trial defendant's liability was admitted, and the only question submitted to the jury was the extent of plaintiff's damages.

The plaintiff was examined shortly after the accident by Dr. Whitney Woodruff. Dr. Woodruff, who was called by defendant, testified that X-rays of plaintiff's spine showed no fracture or dislocation, and he diagnosed the injury as a sprain of the back. He saw the plaintiff again on December 4, 1957, at which time plaintiff complained of dizzy spells, headaches, and pain in the back. His examination at that time revealed muscle soasm in the spinal area. He expressed the opinion that 'within reasonable expectancy there wouldn't be any permanent effect of a sprain.'

Dr. Robert Hansen, called on behalf of plaintiff, first examined him on July 15, 1957. The X-rays that he took were also negative but, as a result of his examination, he concluded that plaintiff had a 'traumatic back, due to his injury; most likely it was a sacroiliac or lumbosacral strain.' Physical thereapy treatment was prescribed and plaintiff was hospitalized from July 27 to August 4, 1957, and again from September 24 to September 27, 1957. Dr. Hansen did not think there was any element of malingering primarily because of the length of time elapsing from the date of the accident to the time of trial, which started on September 23, 1958. He concluded that plaintiff would have 'some degree of disability,' and that he could periodically expect pain and spasms in the lower back and difficulty in doing heavy manual labor.

Dr. S. S. Houkom, an orthopedist called by the defense, examined plaintiff on several occasions. His last examination was on August 22, 1958, at which time there was no atrophy, muscle spasm, or limitation of motion. He could find no evidence of disability other than plaintiff's complaints of pain and discomfort. On March 29, 1958, he performed a myelogram which was negative. In his opinion plaintiff had a lumbosacral strain--a strain of the muscles and ligaments of the lower back. He concluded that plaintiff would probably recover without any permanent disability and, while he might have some discomfort, it would not be sufficient to prevent him from working.

Plaintiff testified that he suffered considerable pain in the back and was afflicted with headaches and a pain in his leg. Because of his inability to do any strenuous work he said he was unable to continue his work as a laborer, a job which was available to him during the summer vacation, paying $2.25 an hour. The plaintiff's father and mother also testified, without objection, that plaintiff had headaches and continually suffered from pain in his back and leg so that he was unable to perform physical labor. Medical expenses were incurred in the amount of $376.50.

1. Plaintiff contends that the verdict was inadequate as a matter of law and that the trial court's instructions regarding prospective damages were erroneous and prejudicial. We shall first consider the assignments of error regarding the instructions.

The court charged the jury in part as follows:

'The plaintiff has the burden of proving all of the elements of his cause of action, and this he must do, except in certain specific matters which I will hereafter discuss with you, by a fair preponderance of the evidence, and by that term is meant that the evidence offered to prove a given fact must fairly outweigh the evidence offered in opposition to it and be of greater convincing force and effect. It is not necessarily to be determined by the number of witnesses who testified with reference to that fact or the volume of testimony which has been received with reference to it. On the whole it may be said that if all of the evidence coming into the case from whatever source fairly convinces you of the existence of a given fact then the party who has the burden of proving that fact by a fair preponderance of the evidence has met that burden.

'Now, the burden of proof by a fair preponderance of the evidence insofar as the plaintiff's claims are concerned obtain insofar as proving his injuries sustained in the accident and the extent of such injuries, and the damages which he has incurred on account of such injuries up to the present time. If you come to consider the claim of the plaintiff for future or permanent injuries a different standard of evidence is required.

'It is the law that one who asserts a claim for future or permanent injuries must prove by a reasonable medical certainty that such future or permanent injuries will be sustained.'

It is argued that this instruction incorrectly states the plaintiff's burden of proof.

In the ordinary civil action, such as involved here, the plaintiff has the burden of proving every essential element of his case, including damages, by a fair preponderance of the evidence. ² It is not required that the evidence be unequivocable or remove all reasonable doubt. ³ It is also well established that there can be no recovery for damages which are remote, conjectural, or speculative. ⁴ In the case of future damages--it being impossible to establish absolute certainty--most courts, including this one, have long followed the rule that recovery may be had if they are 'reasonably certain' to occur. ⁵ This rule, however, has nothing to do with the degree of proof in the sense of the required quality or quantum of evidence necessary to establish the fact. It simply means that the ultimate fact which the plaintiff has the burden of proving is future damages reasonably certain to occur as a result of the original injury. It is still sufficient if the existence of this fact is proved by only a fair preponderance of the evidence. ⁶ Confusion understandably arises because the fact to be proved is, in itself, a matter of probability, although different and of a higher degree than the probability of evidence required to prove the fact.

The distinction here made has been previously recognized by this court on several occasions. For example, in Cameron v. Evans, 241 Minn. 200, 208, 62 N.W.2d 793, 798, we approved the trial court's charge that the jury 'would have to be satisfied By a fair preponderance of the evidence that future disabilities would, to a reasonable certainty, ensue before recovery could be allowed for future disability.' (Italics supplied.) Similarly, the following instruction in Romann v. Bender, 190 Minn. 419, 424, 252 N.W. 80, 82, was upheld:

'* * * If you find that he is permanently disabled, from the evidence in court to a reasonable certainty By a fair preponderance of the evidence, you would have a right to award him permanent damages; * * *.' (Italics supplied.)

The distinction is not an illusory one. When the term 'reasonable certainty' is used to describe the degree of...