Eisele v. Rood

• Decision Date: 01 July 1976
• Citation: 275 Or. 461,551 P.2d 441
• Parties: George V. EISELE, Appellant, v. Gale ROOD, Respondent.
• Court: Oregon Supreme Court

Page 441

551 P.2d 441

275 Or. 461

George V. EISELE, Appellant, v. Gale ROOD, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 30, 1976.

Decided July 1, 1976.

George T. Gant of McNutt, Gant & Ormsbee, Coos Bay, argued the cause and filed a brief for appellant.

Samuel G. Wilson, Eugene, argued the cause for respondent. With him on the brief were Darst B. Atherly, and Thwing, Atherly & Butler, Eugene.

Before O'CONNELL,* C.J., and McALLISTER, DENECKE** and HOWELL, JJ. HOWELL, Justice.

Plaintiff filed this action for personal injuries which he allegedly received when defendant's auto rear-ended plaintiff's vehicle at a stop light. The jury returned a verdict for plaintiff and awarded approximately $1,200 special damages but no general damages. Plaintiff appeals, contending that the court erred in accepting a verdict awarding special damages and no general damages. Plaintiff also appeals the trial court's failure to poll the jury.

At the trial, liability was not seriously controverted, but there was conflicting testimony as to whether plaintiff actually suffered a substantial injury and incurred any general damages. Plaintiff and plaintiff's chiropractor testified that plaintiff suffered neck pain, headaches, pain in his left shoulder, and numbness and weakness in his left arm as a result of the accident. There was also evidence that as a result of these symptoms plaintiff missed several weeks of work and eventually quit when he was told that if he didn't want to work he would be fired. Plaintiff testified that he quit because he was in too much pain and was a potential hazard to his co-workers. Four months after the accident plaintiff stole a generator and was convicted of burglary and first degree theft.

The only medical doctor who testified examined plaintiff at the request of defendant's attorney. His examination revealed that plaintiff's arm trouble was due to a mechanical irritation of the elbow, had been present for many years and was unrelated to the accident. Plaintiff's neck problems were found to be due to chronic cervical strain, that is, a long-term, pre-existing symptom primarily due to muscle soreness. His headaches were also apparently related to the muscle soreness in his neck, as were his shoulder aches. The doctor also indicated that plaintiff seemed to suffer from chronic tension:

'By this I mean an individual who tends to be fairly tense a good share of the time, and it is important in this problem, because these individuals develop a lot of muscular pain, tenderness, Et cetera. * * * (H)e is the kind of person that might have musculo-skeletal type pains and aches off and on all of his life.'

The doctor concluded his diagnosis by stating that in his opinion 'there was no objective evidence of any problem that would be directly related to (the accident).'

The record also indicates that plaintiff had apparently suffered several similar injuries previously and had been treated for them. However, at trial plaintiff claimed that at least one of these episodes was fictional; that he had faked the injury in order to get an early discharge from the Navy. This incident occurred approximately three months prior to the accident in question and involved an extended hospital confinement.

In summary, the record discloses that plaintiff's symptoms were primarily subjective. Moreover, there was medical testimony from which the jury could have concluded that those symptoms for which there was some objective manifestation were due to unrelated problems. Plaintiff's own testimony is punctuated by periods of forgetfulness and inconsistencies. Even more significant is his own admission that he had previously faked a similar injury and had undergone extensive medical treatment in order to dupe the Navy into letting him out early. Under these circumstances, the jury could have rationally concluded that plaintiff was grossly exaggerating the extent of his injuries and that, on balance, the medical testimony did not demonstrate that plaintiff suffered any substantial injuries as a result of the accident. However, the jury could also have concluded that plaintiff did incur some reasonable expenses for diagnosis and treatment and had a legitimate loss of wages for at least a portion of the period he was out of work. Under our past decisions, such a conclusion was legally permissible, and the jury's verdict awarding special damages was not improper.

Since our decision in Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971), a majority of this court has held that if, under the pleadings and the evidence in a particular case, the jury could consistently find that the plaintiff suffered special damages but no general damages, then a verdict for special damages alone was proper. The facts in Saum were similar to the facts in our present case: the plaintiff was involved in a rear-end collision, complained of neck pain, and had previous injuries. Since his complaints were largely subjective and his credibility was subject to question, we concluded that:

'Under such a record it can be understood why a jury might, and perhaps with good reason, find that plaintiff had lied about his alleged injuries and that he * * * suffered no substantial injuries for which he was entitled to any substantial award or compensation for general damages for pain and suffering. * * * At the same time, it can be understood why a jury might still award him special damages representing unpaid doctor and medical bills.' 258 Or. at 536, 484 P. at 295.

However, in the next case which arose on somewhat similar facts, we reached a different conclusion. See Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971). This case also involved a rear-end collision, and there was evidence that the plaintiff suffered neck muscle strain, soreness in the neck and headaches. These symptoms were primarily subjective, and the jury's initial verdict awarded only special damages. An equally divided court affirmed the trial court's actions in refusing to accept this verdict and in reinstructing the jury that in order to award special damages they were required to award general damages as well. In doing so, we distinguished Saum as follows:

'The plaintiff's medical testimony was not contested by the defendants who did not call their examining doctor. Consequently, this case is unlike Saum where the evidence as to whether plaintiff sustained injuries was strongly controverted by other evidence including the medical testimony.' 260 Or. at 344, 490 P.2d at 983.

Moore v. Drennan, 269 Or. 189, 523 P.2d 1250 (1974), was another similar rear-end collision case in which the plaintiff allegedly suffered neck and shoulder strain or sprain and resultant pain and suffering. These symptoms were again largely subjective, and plaintiff's credibility was attacked. Plaintiff alleged that other, more serious injuries also resulted from the accident, but there was conflicting evidence as to whether these more serious injuries were caused by the accident. The jury again awarded special damages but no general damages. Since in Moore there was a direct conflict in the evidence as to whether plaintiff actually suffered any substantial injuries as a result of the accident, this court followed the rule of Saum and distinguished Brannan.

Finally, in Beranek v. Mulcare, 269 Or. 324, 524 P.2d 1214 (1974), we were again faced with a similar problem. The plaintiff was riding a motorcycle which was struck from the rear by defendant's automobile. Defendant's answer admitted 'some' injury to plaintiff but denied that the injury was as extensive as plaintiff alleged. At trial, the extent and permanency of some of plaintiff's injuries were seriously disputed. However, as we noted, there was other objective evidence of general damages which was uncontested:

'* * * (T)here was uncontroverted evidence that plaintiff was hospitalized for five days with his leg elevated and that he was in some pain at that time. There was also evidence that he was at home in bed with his leg elevated for three weeks and that he would have some permanent scars on his leg. This is evidence of general damages.' 269 Or. at 326, 524 P.2d at 1215.

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