Koenig v. Weber, 10499

• Decision Date: 03 February 1970
• Docket Number: No. 10499,10499
• Citation: 84 S.D. 558,174 N.W.2d 218
• Parties: David KOENIG, by R. L. Koenig, his Guardian Ad Litem, Plaintiff and Respondent, v. Almond G. WEBER and Damian Weber, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 218

174 N.W.2d 218

84 S.D. 558

David KOENIG, by R. L. Koenig, his Guardian Ad Litem Plaintiff and Respondent, v. Almond G. WEBER and Damian Weber, Defendants and Appellants.

No. 10499.

Supreme Court of South Dakota.

Feb. 3, 1970.

Martens, Goldsmith, May & Porter, and Warren W. May, Pierre, for plaintiff and respondent.

Woods, Fuller, Shultz & Smith, and Merle A. Johnson, Sioux Falls, Roubideaux, Poches & Reade, and Gerald L. Reade, Fort Pierre, for defendants and appellants.

ANDERSON, Circuit Judge.

This is a motor vehicle accident case.

Plaintiff, by his Guardian Ad Litem, sued for injuries received when the 1963 Ford Station Wagon in which he was riding crashed into the rear end of the 1957 Dodge truck owned by defendant Almond G. Weber. The accident occurred on U.S. Highway 14 and U.S. Highway 83 at a point approximately three miles east of Pierre, South Dakota. The date of the accident was April 24, 1965. The case was brought on for trial by jury at Pierre, South Dakota. It resulted in a verdict for the plaintiff in the sum of $9,500.00. Defendants moved for a new trial following entry of judgment. Defendants' motion was denied. They appeal.

There is little or no dispute as to the facts in this case which, in detail, are as follows:

Defendant Damian Weber, age 16 at the time of the accident, lived with his father Almond G. Weber and family in Rapid City, South Dakota. Defendant Almond G. Weber was an employee of Continental Trailway Bus Company but as a sideline did some trucking with a 1957 two-ton Dodge truck. Defendant Damian Weber, who had obtained a driver's license the year preceding the accident, had driver the truck on numerous occasions. On April 23, 1965, defendant Damian Weber left Rapid City, South Dakota, in the truck with a load of lumber and posts which he delivered to a lumber yard in Blunt, South Dakota. Thereafter he drove to his uncle's farm located seven miles east of Pierre, South Dakota. The truck was equipped with a regular gas tank below the seat and a saddle or auxiliary tank located on the right side of the truck. The main tank of the truck ran out of fuel and Damian put approximately eight gallons of gasoline into the main tank, part from a can he carried with the truck and part siphoned from the auxiliary tank. It was possible to switch from the main tank to the auxiliary tank. While driving the truck Damian switched from the regular tank to the saddle tank to see if it would work. The motor started to sputter when he switched and it appeared that the saddle tank wasn't operating properly because of a fault in the filter mounted between the tank and the fuel pump. Damian decided to go to Pierre to see if he could secure the necessary connections to by-pass the filter between the auxiliary tank and the engine. He stopped at several filling stations in Pierre but was unable to find the proper fitting. During the period of time when he was attempting to secure the fitting, which consumed about an hour, he left the truck motor running because he was fearful that it would not start if he stopped it. Being unable to secure the necessary part or fitting Damian started back for his uncle's farm around 9 p.m. After proceeding about three miles east on U.S. Highway 14--83 the truck ran out of gasoline; he coasted to a halt, parking the truck in what, in his judgment, was as far to the right as possible without going into the ditch. While it appears that there was a 30-inch shoulder on the road where he stopped, a substantial part of the truck was on the traveled portion of the highway.

The testimony of two witnesses, Mrs. Jean Koenig and Clifford Flom, was to the effect that both the right and the left rear wheels of the truck were on the pavement. The paved portion of the highway was approximately 26 feet 3 inches wide at that point. The highway is what is known as a two-lane highway.

Damian turned out the lights of the truck but placed no flares to the rear of the truck or on the highway, although they were available in the cab of the truck. He got out and walked in front of the truck to the right side of it and began siphoning fuel from the auxiliary tank. When the can was about half full, the 1963 Ford Station Wagon driven by Mrs. Jean Koenig of Onida, South Dakota, and containing her three sons, including plaintiff David Koenig and one Ada Jorden, crashed into the rear of the 1957 Dodge truck. At some point west of where the accident occurred a car approached from the east and Mrs. Koenig put her lights on low beam. After meeting the car she met another car going west and Mrs. Koenig kept her car lights on low beam. Mrs. Koenig saw an indistinguishable outline in the road about 150 feet in front of her in her lane of travel. There were no lights on or around this object. She applied her brakes, continuing to apply or pump them until she realized that it was impossible to avoid a collision with the object, which was the parked truck. She attempted to avoid the collision by going into the ditch to the right of the truck but was unable to do so. She determined not to go around the truck to the left because of the approaching automobile. Her car collided with the rear end of the truck with the result that the truck was moved from 9 to 25 feet forward. Plaintiff David Koenig was injured as a result of this accident. The impact between the two motor vehicles was between the left-front door of the Koenig vehicle and the right-rear edge of the box of the defendants' truck. The injuries sustained by plaintiff David Koenig were lacerations of the forehead, left hand, scalp and fracture of the clavicles. It is apparent that he has a permanent scar on the head and the left hand. It also appears that there will be no functional disability of either the head or the hand.

Clifford Flom was following the Koenig car at approximately 400 feet when the accident occurred. He stated the night was dark and the highway was wet and black at the time of the accident, though the visibility was good; that he saw no lights or reflectors on the truck or other signals indicating its presence. In order to miss the Weber truck, Flom had to take evasive action, skidding around the truck to its left and narrowly missing the left-front portion of the truck.

Defendant Damian Weber stated that he did not have the lights on on the truck because, if he had, he did not know if he could get the truck started; he had flares in the truck and did not use them, but that he could have done so. He stated that he was going to get gasoline from the auxiliary tank and put it into the main tank so that he could get his truck started and in motion. He further stated that he knew that U.S. Highway 14 and U.S. Highway 83 were busy highways; that he did not try to 'flag down' any traffic or warn any traffic coming from either direction.

The defendants' 21 assignments of error are grouped into seven main categories, of which the following merit discussion.

The court instructed the jury that they could consider all detriment and damage which plaintiff was reasonably certain to suffer in the future and any pain or suffering that he was reasonably certain to suffer in the future because of such injuries. In this case the plaintiff's injuries consisted of fractures of the clavicles which, according to medical testimony, healed without any residual disability. Plaintiff also sustained lacerations of the face and hand with resulting scars on the forehead. There was no testimony as to the duration and the extent of the future suffering. This, defendants assert, was such as to make it error for the trial court to instruct the jury to consider past and future suffering. The rule in this state is that where an injury is objective and plainly apparent the jury may consider such elements without medical testimony but where the injury is of a subjective nature where laymen could not reasonably know whether there will be future pain and suffering, then expert testimony is required to aid the jury in its determination. Klein v. W. Hodgman & Sons, Inc., 1957, 77 S.D. 64, 85 N.W.2d 289. Defendants assert that there was no evidence, lay or expert, that the plaintiff would suffer any detriment or pain or suffering in the future and that it was error to so instruct the jury.

Doctor Samuel Balkin, an expert in the field of plastic and reconstructive surgery, testified at some length on the prospective effect of permanent scars on a person. He said, 'Young children are just as aware of deformities or scars of their exposed parts, especially the face, as adults are. They may not make as much mention of it but they are quite aware of it. And they are made aware of it very often by adults who kept pestering by asking how they got that scar.' Doctor Balkin further testified that plastic surgery would not completely remove the scar but make its appearance less noticeable, and that the evaluation of the success of such a procedure would be measured by the eyes of persons seeing the subject; that there would be pain in connection with an operation to make some correction of the scars. He said in response to counsel's question: 'as he came out of the anesthetic would there be any pain or discomfort sustained by him? A. Oh yes. There is pain, discomfort as a result of the cutting and the sewing. And prior to the anesthetic, that is prior to being completely asleep, there are needle sticks and the like which is not without pain.' Apparently the testimony of Doctor Balkin was convincing to the jury. Klein v. Hodgman, supra, cannot be disregarded in this case. We are of the opinion that the court's instruction as to future disability and suffering was proper.

The matter of instructing the jury that it could, in awarding damages, consider the elements of personal inconvenience and inability to lead a normal life has been before the courts on several occasions. The determination made by a jury as to damages based on speculation has been...