J. A. Leifson v. Valerian Henning Barbara
| Decision Date | 16 May 1941 |
| Docket Number | 32,746,32,747,32,748 |
| Citation | 298 N.W. 41,210 Minn. 311 |
| Parties | J. A. Leifson v. Valerian Henning; Barbara Gail Leifson v. Same; Woodrow Wilson v. Same |
| Court | Minnesota Supreme Court |
Three actions in the district court for Sherburne county consolidated for trial and heard together on appeal, by Barbara Gail Leifson, a minor, by J. A. Leifson, her father and natural guardian, and by Woodrow Wilson to recover for personal injuries sustained by them in a collision between their car and defendant's auto, and by J. A. Leifson on his own behalf to recover consequential damages sustained. The cases were tried before Leonard Keyes, Judge, and a jury. Verdicts for plaintiffs were returned as follows: Barbara Gail Leifson, $3,000; Woodrow Wilson, $4,000; J. A. Leifson $500. From separate orders denying his motions for a new trial, defendant appealed. Affirmed.
Sexton Mordaunt, Kennedy & Carroll, for appellant.
Faegre Benson & Krause, Paul J. McGough, and Wright W. Brooks, for respondents.
The opinion of the court was delivered by: Hilton
Automobile -- status of driver -- owner or occupant.
1. From admissions made by defendant and from other testimony the jury properly concluded that the defendant and not the owner was the driver of an automobile upon the night that it negligently collided with the plaintiff's car, then in its own lane of traffic endeavoring to avoid the collision.
Appeal and error -- necessity of exception at trial as ground for review.
2. The exclusion of testimony designed to indicate the bias of one of plaintiffs' witnesses is not before this court for review where no exception was taken to the ruling nor error specified in motion for new trial.
Witness -- disclosures to physician not privileged.
3. Disclosures made by a patient to doctor which related wholly to nonprofessional matters not necessary for treatment were not privileged.
Witness -- privileged communication to physician -- waiver of right.
4. Where evidence supported the view that each of two doctors was in attendance of defendant and one was called by defendant to testify that he was not clear mentally when certain admissions were made, he thereby waived a right to insist that the other doctor withhold his view.
Trial -- comments of counsel not censorable as misconduct.
5. Comments of counsel to jury relative to defendant's change of story were not so unfair as to be censorable as misconduct.
The collision which gave rise to this lawsuit occurred about 1:30 a.m. November 4, 1939, on state highway No. 10, while Woodrow Wilson and a friend, Barbara Leifson, were returning to St. Cloud after an evening in Minneapolis. About two miles north of the village of Elk River at a place where No. 10 curves to the left, their car became involved in a collision with another car proceeding southward allegedly driven by the defendant, Valerian Henning. Plaintiffs' case went to the jury upon the theory that defendant was driving on the wrong side of the pavement and not keeping a proper lookout. The jury returned favorable verdicts for Woodrow Wilson, Barbara Leifson, and J. A. Leifson, her father, plaintiffs in the three cases. On appeal from orders denying his motions for a new trial, defendant contends that there was no evidence of neglect which justified a submission of that issue to the jury. Also, error in the admission of testimony is asserted and misconduct of counsel charged.
1. Most of the controversy at the trial concerned the identity of the driver of the southbound car. This car contained two occupants, Henning and Arthur Ness, owner, who died as a result of the collision. At the trial defendant maintained that he was not driving the car. However, in several conversations after the accident, defendant stated otherwise. The jury found him to be the driver. We believe that this and other findings have sufficient evidentiary support.
The jury might have found that as Wilson was driving north on No. 10 at about 35 to 40 miles per hour, keeping to his side of the pavement, he noticed a southbound automobile. When he was about halfway around a left curve, that car, "instead of turning * * * seemed to turn out into my lane, and I couldn't get away from it." When Wilson first noticed this maneuver the cars were about 18 feet apart. That car never did "get back onto its own side of the road again." Wilson turned to the right in an effort to avoid the impact. Though he did not remember the collision, he does remember the headlights of the southbound car being "around six feet ahead" of his car, which "was on the edge, on the right side" of the pavement. This evidence certainly justified the jury's conclusion that the driver of the Ness car collided with the Wilson car when it was helplessly proceeding on its own lane of traffic.
The sequence of events which brought defendant to the collision began earlier the same evening in St. Cloud. Defendant, beginning about eight p.m., went into various places, had some drinks, and shortly before midnight met Ness for the first time. Ness was not "perfectly sober," but Henning "didn't notice his condition." Shortly thereafter they left together in the Ness car. Because defendant "wanted to kill some time," he agreed to go with Ness to Minneapolis, although originally he had intended only to accept a short ride. Defendant says his memory was with him until they reached an overhead bridge located about six miles north of the place where the accident occurred. Thereafter defendant claims to remember nothing until he awakened the following day in a St. Cloud hospital.
It is apparent that the jury rejected the defendant's testimony that he remembered nothing about the accident or the ensuing events. And well they might. They could have found that after the collision the defendant, although suffering from a compound fracture of the arm, was able to stop the first motorist to arrive, ask him for assistance in extricating the occupants of the Wilson car, and to inform him that the Ness car contained another person. Even the defendant's own witnesses saw him walking around at the scene of the collision. Along with the others, Henning was taken to the Anoka hospital. There, without assistance, he walked into the hospital, gave his age, name, occupation, place of residence and family history. Between then and...
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