Klein v. Harper
| Decision Date | 22 April 1971 |
| Docket Number | No. 8636,8636 |
| Citation | 186 N.W.2d 426 |
| Parties | Daryl KLEIN, Plaintiff and Respondent, v. Robert HARPER, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. It was not error for the trial court to permit chiropractor to base his opinion testimony on reasonable medical certainty.
2. The correct measure of damages for personal injury is the necessary and reasonable value of the medical, hospital and drug services rendered to the plaintiff rather than the actual amount paid or incurred for such services.
3. In an action for personal injury, evidence of the amount paid or incurred on account of medical services rendered was admissible as evidence of the reasonable value of the services.
4. A declaration or admission of a party, to be admissible in evidence against him, must tend to prove a fact in issue and must be relevant to the issue or issues in the case.
5. It was error to deny admission of a diagram made a part of a discovery deposition of a party when offered in evidence at the trial by the adverse party where the subject of the diagram was relevant to the issues being tried (Rule 26(d), N.D.R.Civ.P.). However, the error was not prejudicial where the adverse party succeeded in obtaining the same facts from the deponent which he marked upon another diagram already in evidence at the trial.
6. No error in the exclusion of evidence is a ground for granting a new trial unless it is prejudicial and inconsistent with substantial justice.
7. The declaration by the trial court of a mistrial is an extreme remedy to be resorted to only when there is a fundamental defect in the proceedings of a trial or when something happened during the course of the trial which makes it evident that further proceedings therein would be productive of manifest injustice. In the instant case the motion for mistrial was properly denied.
8. Error may not be predicated in this court on an argument or statement of counsel made during the trial, even though it was taken down by the court reporter and was specified as a ground for new trial, unless timely objection was first made in the trial of the case and a ruling was made thereon by the trial court.
9. A motion for a new trial on the ground that damages are excessive and appear to have been given under the influence of passion and prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not reverse the trial court's order on that ground unless an abuse of discretion is clearly shown.
10. A denial of a motion for a directed verdict made at the close of all of the evidence may be reviewed on an appeal from the judgment notwithstanding no motion was made for judgment notwithstanding the verdict. Section 28--27--29.1, N.D.C.C.
11. Questions of negligence, contributory negligence, and proximate cause are primarily questions of fact for the jury and it is only when the evidence is such that reasonable men can draw but one conclusion therefrom that the question becomes one of law for the court. In determining this issue the court must adopt a view of the evidence which is most favorable to the verdict.
Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for defendant and appellant.
Lanier & Knox, Fargo, and John T. Paulson, Valley City, for plaintiff and respondent.
This appeal is taken from an order denying a motion for a new trial and from the judgment. The action arose as a result of a two-car intersectional collision in the city of New Rockford, in which the plaintiff, Klein, claims he was injured as a result of the negligence of the defendant, Harper. The action was tried to a jury. It returned a verdict in favor of Klein in the amount of $15,000. Harper moved for a new trial, which was denied.
At about noon on January 14, 1966, Klein was driving his wife's 1957 Ford northerly on Fifth Street South. At the same time Harper was driving his car, a 1949 Chevrolet, westerly on First Avenue South. A collision of the two cars occurred at the intersection where these two streets intersect at right angles. Klein claims the collision was caused by Harper's negligence and that as a result he, Klein, suffered permanent injury to and an aggravation of a pre-existing condition of his fourth lumbar vertebra.
At the time of the collision the weather was clear but the streets were icy, smooth and very slippery. Both cars were in good mechanical condition. The impact occurred in the northeast quadrant of the intersection. Both cars were traveling slowly at the time of impact. The front of Harper's car struck the right rear fender and bumper of the Klein car. The Klein car was damaged but the Harper car was not. There were no other eyewitnesses to the collision. Klein was about 31 years of age and Harper was about 76 years of age. Both lived in New Rockford, were acquainted with each other and had driven the streets before.
In his motion for new trial Harper specified errors at law occurring during the trial, the insufficiency of the evidence to justify the verdict, and excessive damages appearing to have been given under the influence of passion and prejudice.
The first four specifications of error deal with the question of admission of evidence.
The first claim to error specifies: 'It is error for a chiropractor to base an opinion on reasonable medical certainty.' The question was asked of a licensed chiropractor who had treated Klein in 1967 and 1968. He had testified that he had secured a case history, had taken and studied X-rays of Klein's lower spine, and had treated him 35 times. He testified to his findings and his opinion as to the cause of Klein's pain. He was then asked the following question:
The chiropractor answered as follows:
Harper argues that the distinction between the practice of chiropractics and the practice of medicine is clearly recognized; that it would not have been error to have permitted him to testify with 'chiropractic certainty' but that the trial court abused its discretion in allowing the chiropractor to testify as to 'medical certainty.' He argues that to permit a chiropractor to testify as to a medical fact gives his testimony undue weight and tends to give the jury the impression that his testimony is to be equated with that of a medical doctor, and thus the jury was undoubtedly influenced to believe that the witness was a qualified medical practitioner.
In an action against a physician and surgeon charged with malpractice arising from the setting and treatment of a broken arm, this court held that there was no error in permitting a chiropractor to testify as to the taking of X-ray photographs and what these photographs showed. The court said:
Ness v. Yeomans, 60 N.D. 368, 234 N.W.2d 75, 76 (1931).
The court held that there was no error in permitting the testimony of the chiropractor on such subjects in that case. Ness v. Yeomans, Supra.
Section 43--06--01, N.D.C.C., states that the practice of chiropractic
'shall mean the practice of physiotherapy, electrotherapy, and hydrotherapy as taught by chiropractic schools and colleges, and the adjustment of any displaced tissue of any kind or nature, but shall not include prescribing for or administering to any person any medicine or drug to be taken internally which is now or hereafter included in materia medica, nor performing any surgery, except as is provided in this section, nor practicing obstetrics; * * *'
Section 43--06--16, N.D.C.C., authorizes every licensed chiropractor practicing in this state to sign death and birth certificates, and to sign certificates pertaining to public health; and chiropractors are required to report to the proper health officer in the manner required of licensed physicians. The statute then provides that all certificates signed by a chiropractor licensed in this state shall have the same force and effect as if signed by a licensed physician.
Section 43--06--17, N.D.C.C., provides that a licensed chiropractor may practice in any public or private hospital or other institution in this state upon request of the patient.
Section 43--17--01, N.D.C.C., defines a physician and the practice of medicine. However, Section 43--17--02(9), N.D.C.C., as amended in 1969, exempts chiropractors from the provisions of the chapter governing physicians and surgeons. It states:
'The provisions of this chapter shall not apply to the following:
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