Degen v. Bayman, s. 11336--11338

• Decision Date: 13 May 1976
• Docket Number: Nos. 11336--11338,s. 11336--11338
• Parties: Norbert DEGEN, Plaintiff and Respondent, v. Donald BAYMAN, Defendant, Third-party Plaintiff and Respondent, v. OUTBOARD MARINE CORPORATION, a Delaware Corporation, Defendant and Appellant. William DEGEN, Plaintiff, Appellant and Cross-Respondent, v. Donald BAYMAN, Defendant, Third-party Plaintiff, Respondent and Cross-Respondent, v. OUTBOARD MARINE CORPORATION, a Delaware Corporation, Defendant, Respondent and Cross-Appellant.
• Court: South Dakota Supreme Court

Page 703

241 N.W.2d 703

90 S.D. 400

Norbert DEGEN, Plaintiff and Respondent, v. Donald BAYMAN, Defendant, Third-party Plaintiff and Respondent, v. OUTBOARD MARINE CORPORATION, a Delaware Corporation,

Defendant and Appellant.

William DEGEN, Plaintiff, Appellant and Cross-Respondent, v. Donald BAYMAN, Defendant, Third-party Plaintiff, Respondent and Cross-Respondent, v. OUTBOARD MARINE CORPORATION, a Delaware Corporation,

Defendant, Respondent and Cross-Appellant.

Nos. 11336--11338.

Supreme Court of South Dakota.

May 13, 1976.

Franklin J. Wallahan of Hanley, Wallahan & Murray, Rapid City, for plaintiff and respondent, Norbert Degen; and for plaintiff, appellant and cross-respondent, William Degen.

William G. Porter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for Donald Bayman.

H. L. Fuller of Woods, Fuller, Shultz & Smith, Sioux Falls, George Beal, Rapid City, for Outboard Marine Corp.

MYDLAND, Circuit Judge.

This the second time that this case has been before this court. See Degen v. Bayman & Outboard Marine, 86 S.D. 598, 200 N.W.2d 134. There we held that the case had to be retried because of improper statements made by counsel in closing argument. We also held that defendant Donald Bayman was not entitled to indemnity from defendant Outboard Marine Corporation.

The facts of this case are fully set out in our earlier opinion in Degen v. Bayman, supra. Since they are set out there, we will only summarize them here. Plaintiff William J. Degen was severely injured when a 210 h.p. boat manufactured by defendant Outboard Marine backed over him and struck his legs with its propeller. The accident occurred July 28, 1968, on Sheridan Lake in Pennington County. The operator of the boat was Donald Bayman. Bayman had borrowed the boat from his employer. He had driven the boat at least twice previously and had been operating it on Sheridan Lake for some time prior to the accident. The boat was equipped with an automatic push-button transmission mounted near the throttle control on the right side of the boat. The shift positions were 'forward,' 'neutral' and 'reverse.' The evidence is undisputed that the boat was designed to start in any gear. There was also on warning in the boat to the effect that the boat would start in gear.

At the first trial, William Degen charged Bayman with negligent operation of the boat and Outboard Marine with negligent design of the boat, failure to give an adequate warning of the danger and breach of an implied warranty of merchantability or fitness for intended use. Later a cause of action against Outboard Marine was added alleging strict liability under § 402A, Restatement, Second, Torts.

During the trial of the first case, Bayman settled with William Degen for $65,000, and Degen's mother as his guardian executed a release relieving Bayman of any further liability to William Degen as a result of the accident. The jury then found both Bayman and Outboard Marine liable and set Degen's damages at $380,000. We then considered the case on appeal, reversed and remanded it for a new trial.

At the second trial, Outboard Marine, which had previously filed a cross claim against Bryman, chose to drop its cross claim and was granted an order by the trial judge whereby Bayman was denied active participation in the new trial except as a witness. Norbert Degen, the father of William Degen, sought to recover the cost of the medical expenses relating to his son's injury. Norbert Degen settled with Bayman for $10,000 and executed a release to Bayman relieving him of further liability. Norbert Degen sued Outboard Marine for the medical expenses and this suit was consolidated with the retrial of William Degen's suit against Outboard Marine.

The case was tried to a jury with Bayman participating only as a witness. The jury again found for William Degen and against Outboard Marine. The jury also found for Norbert Degen and against Outboard Marine in his suit for medical expenses. The lower court judge advised the jury in his instructions that William and Norbert Degen had both settled with Bayman for an unspecified amount of money. The jury was instructed, 'If you find for the Plaintiffs and against the Defendant, you must award to each of the Plaintiffs the total amount of damages which they sustained by reason of the accident. You may not make any deduction whatsoever therefrom by reason of the settlement as you have not been instructed concerning what amount was paid by Donald Bayman to the Plaintiffs in connection therewith.'

Pursuant to this instruction, the jury determined that William Degen's total damages amounted to $100,000 and that the total due Norbert Degen for medical expenses was $22,658.35. The judge then deducted the money settlements paid by Bayman, plus accrued credits, and gave judgment to William Degen in the amount of $32,969.63. He deducted the $10,000 settlement from the verdict of $22,658.35 and entered judgment for Norbert Degen in the amount of $12,658.35.

There are three separate appeals from these cases before this court. In No. 11337, William Degen appeals and alleges numerous assignments of error at the trial. No. 11338 involves a cross appeal by Outboard Marine assigning as error the trial judge's refusal to grant its motion for a directed verdict against William Degen. In No. 11336, Outboard Marine appeals from the judgment against it in favor of Norbert Degen. In each case the judgment of the trial court is affirmed.

William Degen presents numerous assignments of error. We will discuss only two in this opinion as we find the rest to be without merit.

Degen assigns as error the trial court's refusal to give the jury his prepared instructions concerning loss of earning capacity, personal inconvenience and loss of ability to enjoy life because of his injuries. The court gave the following instruction, which was numbered 22:

'If you decide for the Plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate Plaintiff William J. Degen for any of the following elements of detriment or damage proved by the evidence to have resulted from the negligence or breach of warranty of the Defendant, whether such detriment could have been anticipated or not, namely:

1. The nature, extent and duration of the injury.

2. The disability experienced and reasonably certain to be experienced in the future as a result of the injury.

3. The pain, suffering and mental anguish experienced and reasonably certain to be experienced in the future as a result of the injury.

4. The reasonable expense of extra shoes, shoe lifts and prescriptions for the same which he has incurred and which are reasonably certain to be incurred in the future.

5. The time lost from his employment and from pursuing his normal activities since his injury, wherein he has been unable to pursue his occupation and normal activities. In determining this amount, you should consider evidence of his earning capacity, his earnings, and the manner in which he ordinarily occupied his time before the injury, and find what he was reasonably certain to have earned in the time lost had he not been disabled.

6. Such sum also as will compensate him reasonably for whatever loss of earning capacity you find that he has suffered as a result of his injury.

7. The reasonable expense of necessary medical care, treatment and services received by him since he reached the age of eighteen, his age of majority, and the reasonable expense of medical care, tratment and services reasonably certain to be received in the future.

'Whether any of the foregoing elements of damage have been proved by the evidence is for you to determine. Your verdict must be based on evidence and not upon speculation, guesswork, conjecture or sympathy.'

Although Degen's requested instruction on loss of earning capacity differed in some respects from the above instruction given by the court, we do not consider the court's refusal to be error. This court has consistently held that jury instructions must be considered as a whole in determining if error was committed in giving or refusing to give certain instructions. Duprel v. Collins, 1914, 33 S.D. 365, 146 N.W. 593; Pollman v. Ahrens, 1974, S.D., 218 N.W.2d 475. We have therefore examined instruction No. 22 and we are convinced that the elements of detriment or damage relating to lost earning capacity are sufficiently stated.

It is settled law in South Dakota that a jury award for personal injury cannot be based upon speculation or conjecture. Kressly v. Theberge, 1961,79 S.D. 386, 112 N.W.2d 232, and Koenig v. Weber, 1970, 84 S.D. 558, 174 N.W.2d 218. We conclude that the instruction set out above properly apprised the jury of the elements of damage for loss of earning capacity so as to enable the jury to determine a reasonable award that was not based upon speculation or conjecture. Degen's requested instructions did not substantially vary from the instructions given by the court, but merely amplified those instructions. As we said in Peters v. Hoisington, 1949, 72 S.D. 542, 37 N.W.2d 410: 'It was not error to refuse to amplify the instructions given which substantially cover the principle embodied in the requested instructions.'

The same reasoning applies to Degen's proposed instruction on personal inconvenience and inability to enjoy life. Although the court refused Degen's instruction, it did fully instruct the jury on damages for pain, suffering and mental anguish, as well as for time lost from pursuing normal activities. While the specific words 'personal inconvenience and loss of ability to enjoy life' were not used, their meaning was bmbodied therein. Had the court given the refused instruction, it would have been only cumulative of those already given and might very well have only confused the jury in its deliberations. We find no error in the court's refusal to give this instruction.

After the jury had...