Hildyard v. Western Fasteners, Inc.

Decision Date19 March 1974
Docket NumberNo. 72--428,72--428
Citation522 P.2d 596,33 Colo.App. 396
PartiesVictor H. HILDYARD, Plaintiff-Appellee, v. WESTERN FASTENERS, INC., a Colorado corporation, and Harvey Bostrom,Defendants-Appellants. . I
CourtColorado Court of Appeals

Grant, Shafroth, Toll & McHendrie, P.C., John N. Dahle, Donald M. Burkhardt, Denver, for plaintiff-appellee.

Paul D. Renner, C.J. Berardini, R. Jerold Gerome, Denver, for defendants-appellants.

RULAND, Judge.

Defendants appeal from a judgment of the trial court entered pursuant to a jury verdict for plaintiff in an action to recover for personal injuries and property damage resulting from an automobile accident. Defendants raise numerous allegations of error, and therefore relevant facts are discussed in this opinion as they relate to the various allegations.

I Confession of Judgment

Plaintiff filed his complaint on July 1, 1969, seeking damages for personal injuries and property damage in the sum of $31,650, interest and costs. Defendants then filed an answer denying liability. On January 12, 1972, plaintiff filed a motion to amend the complaint in order to claim an increase in damages based upon additional symptoms and injuries, whereupon defendants sought to confess judgment for the amount requested in plaintiff's original complaint. The trial court declined to enter judgment based upon defendants' confession and granted plaintiff leave to file an amended complaint.

Defendants assert that there is no statutory method for confession of judgment in Colorado, and thus pursuant to C.R.S.1963, 135--1--1, the common law applies. Citing Towery v. Buck, 81 Okl. 38, 196 P. 693, as representative of the common law rule, defendants contend that the trial court should have entered judgment based upon the confession. We disagree.

C.R.C.P. 68 sets forth the procedure in Colorado for confession of judgment by authorizing defendants to offer to allow judgment to be taken against them; however, the offer must be accepted by plaintiff. Absent acceptance of the offer, the offer is not binding. See Conner v. Steel, Inc., 28 Colo.App. 1, 470 P.2d 71. Absent acceptance of the offer, the trial court correctly authorized amendment of the complaint upon a showing that the nature and extent of plaintiff's damages were not entirely known at the time the original complaint was filed. See C.R.C.P. 15(a).

II Denial of Request for Physical Examination

Plaintiff was injured from a rear end collision while seated in his motor vehicle. Plaintiff was first examined by an orthopedic surgeon, and the injury was diagnosed as a cervical spine sprain and degenerative disc problem aggravated by the sprain. Because plaintiff's pain and restriction of ability to use his left arm continued despite conservative treatment, the orthopedic surgeon referred plaintiff to a thoracic surgeon. This physician diagnosed plaintiff's difficulties as a thoracic outlet syndrome. For purposes of simplification, plaintiff's medical difficulties following these examinations may be described as being either a nerve disorder or a blood circulation problem (circulatory disorder).

By informal agreement between counsel, defendants apparently were in the process of arranging examination of plaintiff by another thoracic surgeon. However, prior to finalizing these arrangements, plaintiff was referred to a neurologist. The neurologist examined plaintiff on two occasions. After the first examination, the neurologist felt that plaintiff showed symptoms of both nerve and circulatory disorders. On the follow-up examination, the neurologist concluded that symptoms of the nerve disorder had subsided and that plaintiff's symptoms were best explained as a circulatory disorder.

Thereafter, by agreement of counsel, plaintiff was examined by a neurological surgeon selected by defendants. The neurological surgeon concluded that plaintiff evidenced symptoms attributable both to a nerve and circulatory disorder.

By motion pursuant to C.R.C.P. 35, defendants then requested examination by a thoracic surgeon. As the basis for their request, defendants asserted that it was necessary, in order to prepare for trial, that defendants have examination by physicians in the same specialty as each physician selected by plaintiff. Defendants assert that the trial court's denial of this motion constitutes reversible error. We disagree.

Although C.R.C.P. 35 does not by its terms limit a party to one examination, See 3 V. Dittman, Colorado Practice § 35.2, a motion for physical examination is addressed to the sound discretion of the trial court, and it is necessary to demonstrate good cause therefor. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152. We find no Colorado cases setting forth the requirements for a second examination. In other jurisdictions, good cause usually consists of showing that despite the initial physical examination, due to special circumstances, the movant continues to be ignorant as to the nature and extent of the claimant's injuries. 1 However, it does not appear sufficient to allege that the defense requires a physician in the same specialty as each physician who has examined and treated the claimant. See Red Top Cab & Baggage Co. v. Grady, 99 So.2d 871 (Dist.Ct.App.Fla.); Jackson v. Whittinghill, 39 Ill.App.2d 315, 188 N.E.2d 337; Roskovics v. Ashtabula Water Works Co., 174 N.E.2d 295 (C.P.Ohio).

In the present case, all of the physicians agreed that plaintiff suffered a cervical sprain from the accident. Reports from all physicians who examined plaintiff at his request were furnished to defendants, and the physician selected by defendants was allowed to make two separate examinations. Although none of the doctors who examined plaintiff was in complete agreement as to whether the cervical sprain caused a nerve disorder, circulatory disorder, or both, there was no indication that examinations by additional physicians would resolve the uncertainty. Hence, under the circumstances of this case, we are unable to conclude that the trial court abused its discretion in denying the motion for physical examination. See Jackson v. Whittinghill, Supra.

III Directed Verdict on Contributory Negligence

Defendants assert the trial court erred by directing a verdict for plaintiff on the issue of whether plaintiff was guilty of contributory negligence. We agree.

Defendant Bostrom's automobile admittedly collided with plaintiff's automobile from the rear as plaintiff's automobile was stopped at some point near a stoplight controlled intersection on a multi-lane street.

Plaintiff testified that the collision occurred after he came to a complete stop for the stoplight at a point where the front of his vehicle was approximately eight feet from the crosswalk. That point of impact was corroborated by testimony of the investigating officer who relied upon measurements made from debris left on the street as a result of the impact.

Bostrom testified that the collision occurred after plaintiff had stopped abruptly one to one and a half car lengths from the crosswalk as the stoplight turned yellow. Bostrom contradicted the police officer's testimony both as to the amount and location of debris on the street following the collision.

Under this conflicting evidence, a factual issue was presented as to whether plaintiff was contributorily negligent by virtue of a sudden and abrupt stopping of his vehicle in an unexpected location. See Gaulin v. Templin, 162 Colo. 55, 424 P.2d 377. Accordingly, the trial court erred in directing a verdict on the issue of plaintiff's contributory negligence.

The fact that Bostrom made inconsistent statements in a prior deposition on other facets of the case is not relevant in determining the propriety of the directed verdict. On a motion for a directed verdict, the evidence must be considered in a light most favorable to the party against whom the motion for directed verdict is requested. See Reidesel v. Blank, 158 Colo. 340, 407 P.2d 30; Randall v. Nasbarg, 28 Colo.App. 147, 470 P.2d 893.

IV Mitigation of Damages

Since this case must be retried, we discuss certain other allegations of error raised by defendants. As an affirmative defense, defendants alleged that plaintiff's refusal to undergo surgery constituted a failure to mitigate damages. At the conclusion of evidence, plaintiff moved and the trial court granted a motion to strike this affirmative defense; defendants contend this ruling constituted reversible error. We disagree.

Plaintiff is an otologist who, prior to the accident, spent a considerable proportion of his time performing various intricate surgical operations on the ear. Following the accident, plaintiff experienced numbness and tingling in the fingers of his left hand when conducting any surgical procedures that required more than 40 minutes. He therefore drastically reduced the number of such operations.

A thoracic surgeon diagnosed plaintiff's injury as a circulatory disorder and suggested that it could be corrected by a surgical procedure which he testified resulted in improvement in 85 to 90% Of the cases and total relief in 10%. On this basis defendants argue that the trial court should have instructed the jury regarding plaintiff's duty to mitigate his damage. See Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684. However, the same surgeon also testified as to the hazards of the operation and that such hazards must be weighed against plaintiff's position as a highly skilled surgeon. Further, he did not rule out the possibility that plaintiff's symptoms might be the result of a nerve disorder which would be unaffected by the surgery he proposed. Finally, an orthopedic surgeon testified that he felt plaintiff's difficulty was primarily caused by a nerve disorder, and other physicians testified that it could be caused by eiter or both conditions.

Under this state of the record, we agree with the trial court that there was...

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