Dornberg v. St. Paul City Ry. Co.

• Decision Date: 27 June 1958
• Docket Number: No. 37212,37212
• Citation: 253 Minn. 52,91 N.W.2d 178
• Parties: Marjorie DORNBERG, Respondent, v. ST. PAUL CITY RAILWAY COMPANY, Appellant.
• Court: Minnesota Supreme Court

Page 178

91 N.W.2d 178

253 Minn. 52

Marjorie DORNBERG, Respondent, v. ST. PAUL CITY RAILWAY COMPANY, Appellant.

No. 37212.

Supreme Court of Minnesota.

June 27, 1958.

Syllabus by the Court

1. Allegation of party in complaint in prior action which was not inconsistent with or contrary to testimony of such party relative to facts in issue in subsequent action was irrelevant and court properly sustained objection to its submission in evidence.

2. Evidence of settlement of claim arising out of accident in litigation made between adverse witness and opposing litigant, while not admissible as admission of liability, may be received for other relevant purposes including that of impeaching witness' statement that she was without interest in the litigation, and had had no previous dealings with litigant making settlement with her, since inference of bias affecting her credibility could be drawn from fact of settlement.

3. To entitle injured claimant to damages to cover need for future surgery, there must be reasonable certainty as to such need. Opinion of medical expert to such effect based upon numerous examinations of plaintiff Held sufficient to support finding as to her need for future surgery because of injuries sustained in accident. Medical expert is not required to exclude all doubts on question but opinion is sufficient even if it is in form of estimates which may fall short of absolute conviction, as such qualifications affect merely the probative force of opinion.

4. Under our decision in Peterson v. Richfield Plaza, Inc., 252 Minn. ---, 89 N.W.2d 712, medical expert may base his opinion as to patient's condition upon examination of such patient for treatment wherein he makes inquiry as to patient's past pain and suffering as result of prior accident affecting same region of body to be treated by him, and may consider patient's narration relative thereto as basis for his opinion when it is essential that he have such information for purpose of treatment.

Michael J. Welsh, Jr., Gordon Paterson and Cary, Welsh & Roseen, Minneapolis, for appellant.

W. S. Lycan, Jr., St. Paul, for respondent.

THOMAS GALLAGHER, Justice.

Action for personal injuries resulting from a collision between plaintiff's car and defendant's passenger bus which occurred November 24, 1954, at the intersection of Selby Avenue and Dunlap Street in St. Paul. Plaintiff was awarded a verdict of $9,500. Defendant appeals from an order denying its subsequent motion for judgment notwithstanding the verdict or for a new trial.

Errors assigned all relate to the evidence. Defendant contends the trial court erred (1) in refusing to receive in evidence a paragraph in a complaint in a prior action wherein plaintiff sought recovery for injuries sustained in an automobile accident in 1951; (2) in refusing to give the jury a cautionary instruction as to testimony of a bus passenger relating to a settlement made with her by defendant; (3) in receiving the opinion of a medical expert as to plaintiff's need for further surgery; and (4) in allowing a medical expert to relate plaintiff's statements as to past pain and suffering made in the course of his examination of her and to base opinions thereon.

At the trial defendant offered in evidence a paragraph in a complaint in plaintiff's prior action wherein she alleged:

'* * * That because of said injuries (received in the 1951 accident) plaintiff suffered, and will for a long time in the future suffer, severe and excruciating pain; that plaintiff is totally disabled and incapacitated and that she is informed and verily believes that she will always be partially disabled and deformed and may necessarily have to undergo further bone surgery.'

After objection thereto by plaintiff and in response to the court's inquiry as to its relevancy, defendant's counsel stated that the court was accurate in concluding that the matters in such allegation were substantially in accord with the medical testimony and that 'there is some question to what degree it is impeaching.' In sustaining the objection to the offer, the court stated that it was of the opinion that there was 'no impeaching statement (in the allegation) contrary to what has been testified to by the plaintiff and her attending and examining physicians during the course of this trial * * *.'

In the course of the trial defendant called Mrs. Eva DaBruzzi, a passenger in defendant's bus, who testified in direct examination that she had no interest in the bus company or its driver or any of the parties to the action and that she was present under subpoena just to tell the truth. Upon cross-examination by plaintiff's counsel she again testified that she had no interest in the bus company whatsoever and had had no dealings with them. She was then asked:

'Q. And as a result of your shaking up the bus company paid you for your injuries, did they not?

'A. Yes.'

Counsel for defendant did not object to or move to strike this testimony, but the following colloquy then took place:

'Mr. Welsh (defendant's counsel): * * * plaintiff's own insurance company contributed 50 per cent of all settlements * * * the only thing that can be done is for the Court * * * to let the jury know that as to payment by the bus company * * * that Miss Dornberg contributed to the settlement and that no significance whatsoever should be drawn * * * from the payment, they should assume that both parties made the same admission--

'Mr. Lycan: * * * There is nothing appearing that the insurance company of Miss Dornberg's automobile contributed to the settlement. Her flat statement * * * was that the bus company paid her. That is the statement in evidence, and certainly is proper impeachment under many Minnesota deciding cases.

'The Court: * * * You satisfy yourself between now, Mr. Lycan, and the end of the trial and the defendant rests as to whether or not, with the situation such as it exists, Miss Dornberg's carrier did contribute payment toward injuries to this witness, and if such be true as stated by Mr. Welsh.

'Mr. Welsh: Even then, my position is that it would not be admissible, * * *.

'Mr. Lycan: May the record show I am not introducing it to show liability, and the court may so instruct the jury. This is impeachment. She said she had no interest in the bus company and had no dealings with its representatives.

'The Court: Let's drop it here and you pursue that, and let the Court know.

'Mr. Lycan: All right.'

No further evidence was submitted on this question and, at the close of the evidence, defendant's counsel requested the court to instruct the jury to disregard testimony of Mrs. DaBruzzi relating to whether she had been paid by the bus company for her injuries on the ground that plaintiff's insurance company had contributed 50 percent to the settlement, making it an admission as to her contributory negligence, if anything. The following proceedings then occurred:

'The Court (to plaintiff's counsel): * * * Do you intend to comment on the fact that Mrs. DaBruzzi was paid by the bus company, as the record indicates?

'Mr. Lycan: Yes, your Honor.

'The Court: * * * I suppose if you do comment on it some comment should be made to the effect that there is some possibility of contribution, even though the record doesn't disclose it. * * *

'Mr. Lycan: The record is clear, your Honor.

'The Court: You will recall that the Court stopped the testimony. It might have developed; we don't know. Then when the objection was raised, of course, that stopped it. * * * because of what happened in court, I request that you not comment on it, or, if so, some correction will have to be made and I don't know how far we will have to go to do it. * * *

'Mr. Lycan: * * * The Court indicated he does not want me to go into that and I will not * * *.

'The Court: I won't forbid you from doing it. I don't know by what means I would correct it if it happens. * * *

I shut it off at the time hoping that the thing would be gone into either by plaintiff or defense counsel and some satisfaction shown the Court that there was or was not contribution. If there hadn't been contribution, you were right in the first instance, you could dwell at length, because every fairness was afforded the defense attorney but it hasn't been pursued. * * * If you comment and are successful and it's later disclosed that there was contribution by your plaintiff's carrier * * * then the Court feels there would be error in the case.'

In this closing argument defendant's counsel stated:

'* * * There were two witnesses who were called here, Mrs. Sjostrand and Miss DaBruzzi, who were not interested in the outcome of the case. * * * I would like to challenge Mr. Lycan to tell you how you can disregard the positive, disinterested testimony of people with no interest in the outcome of this case and to ttll you whether he thinks that Mrs. Sjostrand and Miss DaBruzzi would come in here and perjure themselves * * * or misstate their testimony to keep Miss Dornberg from getting something that she had coming from the Bus Company.'

In his argument to the jury plaintiff's counsel stated:

'* * * Counsel challenges me to answer his question, did they (Mrs. DaBruzzi and Mrs. Sjostrand) have any interest in the case. Mrs. DaBruzzi said she had no dealings with anybody from the Bus Company but yet you heard her testimony here on the stand.'

In its instructions the court made no reference to the testimony of Mrs. DaBruzzi. At the close of the arguments defendant's counsel had protested that plaintiff's counsel had disregarded the court's request that he should not refer to the purported settlement by the bus company. In response thereto the court stated:

'* * * May the record show * * * that * * * counsel's request * * * of instructions would be well taken except * * * that in Mr. Welsh's final argument he challenged * * * Mr. Lycan to explain the testimony of Mrs. DaBruzzi and Mrs. Sjostrand * * * (in) that they had no interest in the case and...