Deleon v. McNinch, 10886
| Decision Date | 01 October 1965 |
| Docket Number | No. 10886,10886 |
| Citation | 407 P.2d 45,146 Mont. 287 |
| Parties | Nick DeLEON, Plaintiff and Appellant, v. E. W. McNINCH, Defendant and Respondent. |
| Court | Montana Supreme Court |
Poore, Poore & McKenzie, Robert A. Poore (argued), Butte, for appellant.
Corette, Smith & Dean, Kendrick Smith (argued), Butte, for respondent.
This is an appeal by the plaintiff from a judgment following a jury verdict in the amount of $1,653.50 for the plaintiff resulting from an automobile collision. The case was tried in Beaverhead County before the Honorable Philip C. Duncan of the Fifth Judicial District of the State of Montana.
Although there is no question of liability on this appeal a brief resume of the facts involved in the accident is necessary. The plaintiff is a 60 year old man, a resident of Melrose, Montana, where he owns and operates a bar. On the morning of August 31, 1962, he drove his 1960 Ford automobile to Dillon to get haircuts for himself and three sons. While waiting second in line for a stop light to change, he was bumped from the rear by the defendant driving his car. The plaintiff and his passengers testified that the light was red at the time of the collision. The defendant and his two passengers testified that the light had turned green and that the plaintiff had started forward, then stopped abruptly thereby causing the accident. The witness also differed as to the magnitude of the impact. In any event, the jury found the defendant negligent and therefore liable.
The plaintiff alleged that as a result of the accident he had serious, extensive and permanent bodily injuries causing pain and suffering and impairment of his gainful occupation. He testified that while seated in the barber's chair an hour or so after the mishap, he felt pain in his neck and developed a headache. He later contacted Dr. F. P. Duchesneau of Butte and alleges that, as a result of the injury, he has seen him some fifty-one times since for treatment. At the time of trial Dr. Duchesneau testified that further treatements would be necessary. The plaintiff complains that since the accident he has had constant headaches, pains in his neck and back, numbness in his left hand, and an impairment of his sight and hearing.
Two physicians, Dr. Duchesneau and Dr. H. D. Rossiter were placed on the witness stand by the plaintiff. The defendant put Dr. Loren G. Hammer on the stand and had another, Dr. M. A. Gold, testify by deposition. All agreed that the plaintiff's back was not normal. Each found that there was a loss of normal lordotic curvature of the cervical spine and displacement of cervical vertebra 4 and 5. The radiological report of a fifth physician, Dr. James G. Sawyer, was admitted into evidence over plaintiff's objection during cross-examination of Dr. Duchesneau. Dr. Duchesneau had sent the plaintiff to Dr. Sawyer to have X-ray photographs taken which were later used by Dr. Duchesneau in making his diagnosis. Appurtenant to the photos was the report in which Dr. Sawyer stated that the plaintiff's back and neck were normal.
Plaintiff-appellant alleges first that it was error to admit into evidence the written radiological opinion of Dr. Sawyer, when the doctor was deceased and therefore could no be cross-examined. Plaintiff relies on the recent decision of this court, Shillingstad v. Nelson, 141 Mont. 412, 378 P.2d 393, in which it was held that unsworn medical reports, where no right to cross-examine is had, are hearsay and inadmissible. It should be noted that the facts of the Shillingstad case are not the same as here. We see no need, however, to pass on the question of whether the Shillingstad rule applies to this case. The fact is that error or no error, we can find no prejudice in the admission of Dr. Sawyer's report.
Plaintiff urges that it was prejudicial in that the report was the only medical evidence that after the accident the plaintiff's neck was normal. In fact, according to the plaintiff, it was the only evidence upon which the defendant could substantiate to the jury his claim that the plaintiff 'wasn't damaged in any sum whatsoever.' We cannot agree with this contention.
The record reveals considerable evidence which would support a conclusion that the plaintiff suffered little or no injury. To begin with, passengers in the defendant's automobile testified that the jolt from the collision of the two vehicles was a mild one. The defendant's wife revealed that a pan of jello and a chocolate cake on a plate in the back seat were undisturbed by the impact. Neither she, nor Walter Sibrel, a passenger in the front seat of the defendant's car were jostled about. The plaintiff testified that his hat was knocked off. Nevertheless he suffered no cuts, bruises or broken bones. At the time of the accident he said he felt no pain. He testified that he first felt pain in his neck about an hour later while in the barber shop receiving a haircut. The barber, however, did not recall any complaint of pain made by the plaintiff at that time. The plaintiff was able to get along without a neck brace at all times. It is interesting that one was prescribed, but not until after he had been examined by the defendant's physician. He appeared at trial not wearing the brace and testified that it did not bother him to be without it.
It is true that only Dr. Sawyer found the plaintiff's neck to be normal. However, this does not mean that his was the only medical testimony unfavorable to the plaintiff's case. Dr. Gold described the separation of C-4 on C-5 as a normal condition of age. He said that arthritis of the cervical spine could be causing the pain plaintiff complained of. Dr. Gold found no condition that could be ascribed to a car accident. The testimony of Dr. Hammer was substantially the same, although he said the loss of normal cervical curvature might have been caused by the mishap. He also said it could have been occasioned by arthritic changes. This loss he described as 'mild'.
Dr. Sawyer's report was merely additional evidence substantiating the defendant's case. It was cumulative, even though his findings differed from those of Drs. Gold and Hammer. The effect of each analysis was the same, that is, to gravitate against the plaintiff's claim. Defendant's contention of 'damages in no sum whatsoever' did not hinge upon the admission of Dr. Sawyer's report. It was supported by the other evidence here referred to. Additionally Dr. Duchesneau was allowed to, and did explain his reasons for differing with Dr. Sawyer's report. No prejudice therefore resulted.
The plaintiff's second specification of error is that in awarding damages the jury disregarded uncontradicted, credible evidence which they were not at liberty to do. Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044, 67 A.L.R.2d 1.
The allegation is that the following past expenses were absolutely proved and under the instructions given should have been included in the award:
Dr. Duchesneau $395
X-rays 55
X-rays 25
Examination and X-rays (Western Montana Clinic) 104
Dr. Plett 23
Thomas Collar (neck brace) 12.50
Mileage from Plaintiff's Melrose home to doctor's (Butte) office
and return--51 trips (2,570 miles at .12 cents per mile) 428.50
Mileage from Plaintiff's home to Missoula Clinic and return
(300 miles at .12 cents per mile) 36
Car damage 300
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Total $1,378.90
In addition, the jury was instructed to award damages for expenses reasonably certain to be incurred in the future. The plaintiff contends that the evidence is uncontroverted that the non-speculative and immediately foreseeable cost of treatment would be $292.80. This makes a total of $1,671.70 in uncontradicted, credible expenses. The jury's verdict for $1,653.50 was $18.20 less than out-of-pocket expenses not to mention loss of earnings and pain and suffering. Thus, so the argument runs, the award was contrary to the law as being in conflict with the court's...
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State v. Cline
...21, 445 P.2d 910, the above instruction requiring such proof became the 'law of the case' and the jury was bound thereby. DeLeon v. McNinch, 146 Mont. 287, 407 P.2d 45; McDonald v. Peters, 128 Mont. 241, 272 P.2d 730; Wood v. Jeager, 128 Mont. 235, 272 P.2d 725; Metcalf v. Barnard-Curtiss C......