Lemere v. Safeway Stores

• Court: California Court of Appeals
• Writing for the Court: BRAY; PETERS, P. J., and FRED B. WOOD
• Citation: Lemere v. Safeway Stores, 228 P.2d 296, 102 Cal.App.2d 712 (Cal. App. 1951)
• Decision Date: 08 March 1951
• Parties: LEMERE et al. v. SAFEWAY STORES, Inc. et al. Civ. 14509.

Page 296

228 P.2d 296

102 Cal.App.2d 712

LEMERE et al. v. SAFEWAY STORES, Inc. et al.

Civ. 14509.

District Court of Appeal, First District, Division 1, California.

March 8, 1951.

Hearing Denied May 3, 1951.

Howard Magee, San Francisco, Philander Brooks Beadle, San Francisco, for appellant Constance Lemere.

Tinning & DeLep and J. Vance Porlier, Richmond, for respondents.

BRAY, Justice.

In an action for personal injuries a jury awarded plaintiff Albert O. Lemere $8,850 and plaintiff Constance Lemere $7,500. Plaintiff Constance appeals from that portion of the judgment entered thereon which awarded her only said sum of $7,500, claiming that certain instructions are erroneous. Plaintiff Albert did not appeal, nor did defendants.

Evidence.

On November 15, 1947, while shopping in the Safeway Store at Pittsburg, plaintiff Constance, ¹ 22 years of age, tripped over a box of beer bottles that had been left standing in an aisle. She was knocked unconscious. She sustained a deep cut on the leg and minor cuts on her hand; also head injuries, and apparently a compression fracture of the twelfth thoracic vertebra. There was some disagreement in the evidence concerning this injury. She claimed her right leg was paralyzed for approximately five months. She was in a hospital for thirty-eight days immediately following the accident and was confined to her bed for another five or six months. From then until the trial (a period of approximately fifteen months), she had been confined either to bed or lying down, an hour being the longest she had stayed up at any one time. She appeared in court in a wheel chair. She had been attended by at least nine doctors, and been in four different hospitals. She was confined in the Antioch Hospital on nine different occasions, a total of 127 days (the last confinement of seven days being approximately five months before the trial). Her right leg was in traction for approximately twenty days. Then both legs were placed in traction. Traction had been applied eight or nine different times. She was in a cast from the chest to below the hips for about six months. A second cast remained on about four months. Day and night since the removal of the cast she had been required to wear a steel and canvas brace. Without the brace she claims that she has terrible pains in her back and leg. She claims that severe headaches persist, and that continuously, except for about thirty days, she has run a fever. She testified that before the accident she was in good health, worked as a waitress, and in addition, with the help of her mother-in-law, did household duties for her husband and child. Now, the housework was done entirely by the mother-in-law. She worked as a waitress for approximately eighteen months prior to a month before the accident, earning with tips an average of about $75 per week. The bills for hospital, nursing, drug and medical expense to the time of trial totaled $7,096.62. This amount probably was included in the jury's allowance to the husband of $8,850.

Plaintiff concedes that the damages allowed her were not inadequate as a matter of law, but contends they are inadequate as a matter of fact. She contends that by the allowance of the special damages including hospital fees incurred shortly before the trial and medical expenses to the time of trial, the jury must have found that she was injured by the fall and that those injuries continued at least until the time of trial. Defendants contend, first, that she received no serious injury particularly, no compressed fracture of the twelfth thoracic vertebra, and secondly, if she did, she had long since recovered fully and was now exaggerating her condition. Depending upon whether or not plaintiff's testimony as to her subjective symptoms is believed, the evidence would support either a finding that she suffered serious injury from which she had not recovered and which probably would continue in the future, or a theory either that she had not injured her vertebra, or, if she had, that she had fully recovered. Obviously, the jury must have found that she received injury as it apparently allowed the husband full compensation for the expenses incurred and gave him additionally approximately $1,500. About twenty-two months had elapsed between the accident and the trial. Plaintiff contends that the jury should have awarded her $75 per week loss of wages for that period, or approximately $6,600, leaving from the verdict only about $900 for pain and suffering and permanent injury, if any. However, its award to the wife might indicate that it believed she had fully recovered and that she could have returned to work before the trial.

There was a conflict in the medical testimony, even as between plaintiff's doctors. Defendants called but one doctor as to plaintiff's condition resulting from this accident. He is an orthopedist and had examined plaintiff in March, 1946, for claimed injuries in a Greyhound bus accident in October, 1944. She then complained of pain in the lower portion of her back and down into her leg. The x-rays taken of the twelfth thoracic vertebra at that time showed no pathology. He again saw plaintiff about a year following the accident here, at which time he took x-rays, including the twelfth thoracic vertebra, but could find no evidence of injury, nor could he find any such evidence in other x-rays taken by plaintiff's doctors and shown him, in which some of plaintiff's doctors found evidence of fracture. He concluded she was 'a faker of her injury.' Evidently, the jury did not believe his testimony to the effect that she had not been injured.

Dr. Dozier, a general practitioner, examined plaintiff the night of the injury and he and Dr. Fischer undertook to treat her. He testified that she was still disabled, spending most of her time in bed, experiencing considerable pain, and having improved very little over the past six months. He found a slight compression fracture of the twelfth thoracic vertebra, a condition he did not find in the x-rays shown him taken in 1944. He had been unable to determine from the x-rays whether the fracture was fresh or old, although now he believed it to have been a fresh one. Plaintiff has run a fever at various times ever since her accident, for which the witness and other doctors have been unable to account. The witness could not predict how long the present condition will continue. He found nothing organically wrong with plaintiff's right leg and he found it difficult to answer a question as to what its functional disorder was. He last saw the patient a day or so before the trial and she was in bed complaining of considerable pain.

Dr. Fischer, an orthopedist, was called into consultation by Dr. Dozier. He first saw plaintiff approximately ten days after the accident. He found muscle spasm of the lumbo-sacral musculature and tenderness in the small of the back and in the low back. Although it was a little hard to tell, owing to her having a lot of pain and being upset emotionally, he did not think there was any decrease in the motor power of her legs. She ran a fever while in the hospital, although he was not impressed with it then. It has been an intermittent fever since. He and the other doctors have been unable to uncover its cause. Principally because of her fever, he sent her to Dr. Paul Aglar of the University of California where tests were made and she was studied, but they were unable to find the cause. Because of the pain in her leg he sent her to a neurosurgeon, Dr. Lester Lawrence, who had her admitted to Providence Hospital and they were unable to find the cause. She was studied at Stanford Hospital where they likewise were unable to find the cause. Plaintiff told him that she had previously slipped in a Greyhound bus and had bruised her sacrum which would be just below the point where she now has maximum tenderness. He examined the 1944 x-rays and found no abnormality in the vertebra. He found in the x-rays of the 1947 accident a compression fracture of the twelfth dorsal (thoracic) vertebra. He had seen plaintiff roughly fifteen to twenty times. The patient is still disabled. He felt that she had received a back sprain and that there had been some inprovement but it had been very slow, very discouraging. Without knowing the reason for the fever it is difficult to give an accurate prospect of the future. She will probably continue to improve slowly over a long period, possibly one to three years. She will probably have some permanent residual disability, although it is difficult to say because there are unknown factors. While there is a little irregularity of the inferior and superior surfaces of the twelfth dorsal (thoracic) vertebra shown in the 1944 films, these are quite normal. At the time he first saw plaintiff and the x-rays of her 1947 accident he thought the fracture was an old one. He did not attach much significance to it because it was giving plaintiff no trouble and the pain of which she complained most bitterly was lower down. He thought if it was a compression, it was a mild one and was not giving her much trouble. He put plaintiff into traction although traction is not standard treatment for a compression fracture, because he thought her injury was to the muscles and ligaments of the lumbo-sacral region. The first brace he put on did not cover the twelfth vertebra and was not for support of it. Plaintiff was hospitalized once after falling from stepping on her shoe lace and twisting her back. In a report to Dr. Dozier (July 8, 1948) he stated: 'I notice that patient tends to stand more on her right leg than on her left, which is not what one would expect with the right more painful than the left. * * * I feel that patient is making good progress, and will continue to improve over a considerable period of time.'

Dr. Aglar in his report to the witness stated, in effect, that because of inability to arrive at a conclusion concerning the cause of plai...