Mabrier v. A. M. Servicing Corp. of Raytown

• Decision Date: 17 September 1968
• Docket Number: No. 52969,52969
• Citation: 161 N.W.2d 180
• Parties: Clara MABRIER, Appellee, v. A.M. SERVICING CORPORATION OF RAYTOWN, Appellant.
• Court: Iowa Supreme Court

Page 180

161 N.W.2d 180

Clara MABRIER, Appellee, v. A.M. SERVICING CORPORATION OF RAYTOWN, Appellant.

No. 52969.

Supreme Court of Iowa.

Sept. 17, 1968.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant.

Richard L. Pinegar, Des Moines, for appellee.

STUART, Justice.

Plaintiff slipped and fell in the Atlantic Thrift Store at Eastgate Shopping Center in Des Moines. Her action at law for damages for personal injuries resulted in a verdict of $23,954 in her favor. Defendant has appealed from the overruling of its motion for new trial which attacked (1) the sufficiency of the evidence on certain issues, (2) excessiveness of the verdict, and (3) the instructions.

I. Defendant's first error relied upon for reversal relates to the sufficiency of the evidence to generate a jury question on the causal connection between the fall and the claimed injury to plaintiff's knee.

On January 20, 1966 Clara Mabrier, while shopping as a business invitee with her daughter in defendant's store slipped and fell on slick, greasy floor sealer which had not hardened at the spot of the fall because of improper application. Defendant's negligence is not an issue on appeal. Plaintiff fell on her left elbow and her left knee, experienced a great deal of pain in her elbow at that time and was taken immediately to the office of Dr. Dickens by her daughter. Her elbow was fractured. Dr. Dickens applied a cast which remained on her arm for about three weeks. Mrs. Mabrier testified: 'At the time of the fall my arm hurt so bad * * * that is all I could think of * * *.'

Plaintiff convalesced at home during the approximate 3 week period her arm was in a cast and was referred on February 9, 1966 to Dr. Dubansky, an orthopedic surgeon, who placed her on a treatment and exercise program to overcome the loss of motion in the injured elbow. Dr. Dubansky last saw her for treatment of her elbow on April 22, 1966. Mrs. Mabrier, at the time of trial had essentially recoverd from her elbow injury although her left arm was weaker and her elbow more sensitive than before.

Two or three days after the fall, plaintiff noticed discolored black and blue bruises on her left knee. She testified the bruises and swelling went away in two or three weeks and she was not too concerned about it because her arm hurt so bad at that time.

'After the fall in January, 1966, I noticed that if I was on my feet quite awhile then I would have pain and difficulty in my left knee, then if I was off my feet it would be all right. I never had that prior to January 20, 1966. This condition occurred periodically when I was on my feet for some time after the fall.'

Plaintiff contacted Dr. Anspach about her left knee July 16, 1966: '* * * I did not tell him about the fall in connection with my knee either. I simply told him about the problems I was having with the knee. At the time I saw Dr. Anspach on the 16th, I told him about the problem of having gotten up out of the chair two or three weeks before and having some problem with my knee, that was sometime in June, but that had happened before, but it was more severe that time. I had to be more careful now when I would get up.' Dr. Dubansky's records show he was not told of her fall until January 12, 1967.

X-rays indicated the necessity for surgery which was performed by Dr. Dubansky. He removed the left kneecap which he found to be soft, rough, and irregular and washed out specks of floating cartilage found in the knee joint. Plaintiff was hospitalized from July 17, 1966 to July 25, 1966 and returned to the hospital for treatment of her knee on three subsequent occasions.

Dr. Dubansky testified: * * * there could be a causal relationship between the fall in January of 1966 and the condition that I found at the time of surgery.' Dr. Dubansky also quoted from his written report of January 13, 1967 on recross and redirect examination: 'I cannot unequivocally say that the accident was the sole cause, because the changes at the time seen by me are changes which are responses to many causes. It is on the basis of history that I say a causal relation exists between the condition when I saw it and the injury.'

Defendant stresses the fact that plaintiff did not tell her doctors about falling on her knee until about a year after the accident and six months after it began to give her serious trouble. The failure to mention her fall is understandable. More painful injuries occupied her mind at the time. Dr. Dubansky testified: 'An injury to a knee or kneecap can upset a process of degeneration or chondromalacia, which eventually will culminate in symptoms to the patient over a period of time, so that I believe that as given in the (hypothetical) question, in an injury to the kneecap, approximately six to seven months later you could have pain in the knee as a result of the injury.'

Defendant also calls our attention to the portions of Dr. Dubansky's testimony in which he stated it was possible the condition of plaintiff's knee was caused by the fall or other causes.

However, Dr. Dubansky refused to make a distinction between possible and probable stating they meant the same to him. 'I would use possible and probable interchangeably, not knowing any difference between the two.'

Medical testimony that it is possible a given injury was the cause of subsequent disability, or 'could have' caused it, is insufficient, standing alone, to establish causal connection. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 910, 76 N.W.2d 756, 761.

'However, when expert evidence of possible causal connection is coupled with other testimony, nonexpert in nature, that plaintiff was not afflicted with any such condition prior to the accident, then the question is for the jury. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756; Chenoweth v. Flynn, 251 Iowa 11, 99 N.W.2d 310; Bradshaw v. Iowa Methodist Hospital, supra (251 Iowa 375, 101 N.W.2d 167); See also annotation, 135 A.L.R. 516, 532, et seq.' Schneider v. Swaney Motor Car Co., 257 Iowa 1177, 1188, 136 N.W.2d 338, 345; Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 1072, 146 N.W.2d 911, 915.

There is ample evidence plaintiff's injured knee and elbow functioned properly prior to January 20, 1966. The causal connection between the fall and the knee injury was correctly submitted to the jury.

II. Defendant claims the trial court erred in submitting plaintiff's claim for future pain and suffering to the jury. It claims the future consequences of an injury must be shown with reasonable certainty, citing Bostian v. Jewell, 254 Iowa 1289, 121 N.W.2d 141 and Daniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868. It points out the record is barren of any medical testimony as to future pain.

In Iowa, when pain is suffered right up to the time of trial and there is evidence plaintiff has not fully recovered, future pain and suffering may be submitted to the jury without medical testimony. Kaltenheuser v. Sesker, 255 Iowa 110, 118, 121 N.W.2d 672, 677; Arenson v. Butterworth, 243 Iowa 880, 890--891, 54 N.W.2d 557, 563; Danner v. Cooper, 215 Iowa 1354, 1364, 246 N.W. 223, 227.

The jury can find from such evidence that it is reasonably certain plaintiff will suffer pain...