Couture v. Novotny

• Decision Date: 21 September 1973
• Docket Number: No. 43494,43494
• Parties: Gaston COUTURE, Respondent, v. Clair NOVOTNY et al., Appellants.
• Court: Minnesota Supreme Court

Page 172

211 N.W.2d 172

297 Minn. 305

Gaston COUTURE, Respondent, v. Clair NOVOTNY et al., Appellants.

No. 43494.

Supreme Court of Minnesota.

Sept. 21, 1973.

Syllabus by the Court

1. A person injured by the wrongful act or omission of another has a duty to mitigate damages by exercising reasonable precaution in the care and treatment of such injury.

2. In an action for personal injuries, where it appears, as it does in the instant case, from all of the evidence that the jury might find that a surgical operation would alleviate those injuries and that a reasonably prudent person under all of the circumstances would undergo such an operation, then the jury should be given an instruction along this line:

If you find that the injuries suffered by plaintiff can be alleviated by a surgical operation and that a reasonably prudent person would undergo such an operation, under all of the circumstances in this case, then such a finding should be taken into consideration by you as a factor which would reduce the amount of damages to which plaintiff would otherwise be entitled.

Garrity, Cahill, Gunhus, Streed & Grinnell, and Paul E. Grinnell, Moorhead, for appellants.

Rufer, Hefte, Pemberton, Schulze & Sorlie and James L. Schulze, Fergus Falls, for respondent.

Reconsidered on the record by the court en banc.

Heard before KNUTSON, C.J., and OTIS, KELLY, and SCHULTZ, JJ.

KELLY, Justice.

This action was brought to recover for personal injuries resulting from a head-on collision. After the trial court instructed that defendant driver was negligent as a matter of law, the jury found no negligence on the part of plaintiff and assessed damages at $25,000. Defendants appeal from the denial of their motion for a new trial. We reverse.

Defendants raise two issues on appeal: First, whether the trial court erred in failing to give a requested instruction concerning plaintiff's duty to mitigate damages through proper care and treatment of his injuries. Secondly, whether the verdict of $25,000 was excessive.

Plaintiff was injured on September 16, 1968, at approximately 4:30 a.m., near Rothsay, Minnesota, in a collision with an automobile owned by defendant Edward Novotny and driven by defendant Clair Novotny. Plaintiff had been driving continuously since 9 a.m. the previous morning with periodic stops to rest. With the exception of head lacerations, plaintiff noticed no injuries. He was examined by a doctor after the accident but was not hospitalized. He noticed the initial indication of other injuries when he awoke the following morning with a stiff and weak left knee.

Plaintiff first contacted Dr. Evans about the knee condition about 2 days following the accident. Plaintiff's knee began causing more pain when he returned to work as a pipefitter and welder on heavy construction in Gillum, Manitoba, Canada. He continued to work at the construction project for 4 or 5 months, seeing Dr. Evans 2 or 3 times during this period. He was forced to terminate this employment when his work made it necessary for him to climb many steps daily, activity which caused his knee to swell and periodically dislocate.

After leaving Gillum late in January 1969, plaintiff was examined, upon the advice of his attorney, by Dr. K. W. Covey, an orthopedic surgeon in Moorhead, Minnesota. Dr. Covey diagnosed a cartilage injury to the undersurface of the left kneecap and estimated a 10-percent permanent disability for which surgery would not be corrective. The record does not show that Dr. Covey recommended any treatment for the condition.

Thereafter, plaintiff went to Toronto where he worked for only a week or two before quitting his job because of pain in his knee caused by climbing stairs. The following month, after his knee had recovered sufficiently, he worked at another job for about a month and a half. He did not see a physician while in Toronto.

From Toronto, plaintiff went to Illinois where he worked for about 8 months. While in Robinson, Illinois, plaintiff sought treatment for his knee from Dr. H. F. Iknayan on three or four occasions. This doctor diagnosed a cartilage injury and recommended support for the knee with an option for corrective surgery. Although unable to predict if the stability of plaintiff's knee would progressively worsen, the doctor indicated he was apprehensive about plaintiff's doing work which required him to walk on unsupported steel.

Thereafter, plaintiff worked in New Jersey for 4 or 5 months before going to Harrisburg, Pennsylvania, where he was employed at the time of trial. In Harrisburg, he consulted Dr. Bruce Goodman, an orthopedic surgeon, who diagnosed a tear in the knee cartilage. Dr. Goodman stated that walking on steel beams was unsafe for plaintiff because of instability of his knee and that climbing stairs would cause swelling and locking. He recommended surgery which he estimated would cost $300 with hospitalization costing an additional $500. The period of hospitalization and outpatient therapy would vary with the patient, averaging several weeks. The doctor stated that any operation around a major joint is serious with potential complications and even a slight possibility of death. However, he also testified that the surgical complications for this operation are relatively rare occurrences, that the vast majority of patients come through without any complications, and that he would expect a rather successful result in the vast majority of cases. He also stated that the cartilage would not heal by itself. Plaintiff had previously had surgery, apparently successful, to remove torn cartilage in his other knee.

Defendants allege error in the trial court's failure to instruct the jury on plaintiff's duty to mitigate his damages through proper treatment of the knee injury. Defendants had requested Minnesota Jury Instruction Guide, Instruction 164, which reads:

'In determining the amount of damages the (claimant) may recover for his injuries, you should consider that one who is injured has a duty to act reasonably in obtaining treatment in caring for his injury. He is limited to those damages which he would have suffered if he had acted reasonably in obtaining treatment and care.

'There is no duty to submit to a major surgical operation.' (Italics supplied.)

Apparently defendants did not request the italicized portion of the instruction.

Defendants' contention that the requested instruction should have been given is essentially premised on the belief that plaintiff's damages should not include amounts for future disability when the knee injury can be corrected with surgery.

The rule in Minnesota is that a person injured by the wrongful act or omission of another has a duty to mitigate damages by exercising reasonable precaution in the care and treatment of such injury. If he does not exercise such precaution, he cannot recover damages resulting from such lack of precaution. Beck v. Chicago, M. & St. P. Ry. Co., 134 Minn. 363, 159 N.W. 831 (1916); Patterson v. Blatti, 133 Minn. 23, 157 N.W. 717 (1916); Kesich v. Oliver Iron Min. Co., 188 Minn. 173, 246 N.W. 672 (1933). In Beck v. Chicago, M. & St. P. Ry. Co., Supra, the court upheld an instruction to the following effect: In the plaintiff's efforts to heal the wound or prevent an extension or aggravation of the injury, plaintiff was bound by the rule of reasonable care, and if he exercised such care, the fact that he may have erred would not necessarily deprive him of the right to recover.

The doctrine of mitigation does not require the injured party to submit to a major surgical operation. He may choose to bear his affliction and be compensated for it. Butler v. Whitman, 193 Minn. 150, 258 N.W. 165 (1934); Perry v. Chicago G.W. Ry. Co., 152 Minn. 398, 188 N.W. 1002 (1922); Gibbs v. Almstrom, 145 Minn. 35, 176 N.W. 173 (1920); Maroney v. Minneapolis & St. L.R. Co., 123 Minn. 480, 144 N.W. 149 (1913); Otos v. G.N. Ry. Co., 128 Minn. 283, 150 N.W. 922 (1915).

In the year 1913, this court observed in Maroney:

'* * * Whether plaintiff should submit to a Major surgical operation for an internal malady is a question for her alone to determine. Such operations involve a known risk, which she alone must bear. Defendant is in no position to complain that plaintiff has seen fit to suffer from her...