McDonald v. United Airlines, Inc., 8565.
| Decision Date | 26 September 1966 |
| Docket Number | No. 8565.,8565. |
| Citation | 365 F.2d 593 |
| Parties | Merle H. McDONALD and Stella McDonald, Appellants, v. UNITED AIRLINES, INC., a Delaware corporation, and Alan G. Rutherford, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John L. Griffith, Denver, Colo. (Mary C. Griffith and John S. Carroll, Denver, Colo., with him on the brief), for appellants.
Don R. Evans, Denver, Colo. (Yegge, Hall, Treece & Evans, and John R. Trigg, Denver, Colo., with him on the brief), for appellees.
Before PHILLIPS, JONES and SETH, Circuit Judges.
The appellants, who are husband and wife, commenced this diversity action in the United States District Court for the District of Colorado for personal injuries, medical expenses, loss of consortium, and property damages arising out of an automobile collision. The case was tried to a jury which returned a verdict for plaintiff-appellant, Merle H. McDonald, in the amount of $731.93. This award appears to be for the property damage claim only. The plaintiffs then took this appeal asserting that the trial court was in error in refusing to give certain of their requested instructions, and in refusing to permit certain closing arguments to be made to the jury.
Appellant, Merle H. McDonald, alleged that as a result of the accident he has severe back pains and throbbing head pains which are permanent and disabling. There is testimony in the record showing that Mr. McDonald had headaches and an arthritic condition in his back before the injury. The appellees assert that no part of Mr. McDonald's condition was related to the accident. Appellants take the position that if there were these preexisting conditions they were aggravated by the accident.
The principal issue on appeal relates to this matter of prior defects and to the refusal of the trial court to give appellants' Requested Instruction No. 14 on the point. This instruction reads:
"You are instructed that where a pre-existing diseased condition exists, and where after trauma aggravating the condition disability and pain result, and no apportionment of the disability between that caused by the pre-existing condition and that caused by the trauma can be made, in such case, even though a portion of the present and future disability is directly attributable to the pre-existing condition, the defendant, whose act of negligence was the cause of the trauma, is responsible for the entire damage."
This requested instruction was based upon the decision of the Colorado Supreme Court in Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811.
The trial court refused to give the above requested instruction apparently because it did not consider the Colorado case from which it was taken to be applicable, and we agree. In Newbury v. Vogel the plaintiff introduced evidence to show that it was not possible to make an apportionment of disability between that caused by the preexisting conditions and that caused by the negligence of the defendant. Thus the plaintiff there established this impossibility. It appears that the decision of the Colorado Supreme Court was based upon such a showing as the opinion states that the instruction be given where, among other things, no apportionment "can be made." Thus the issue had there been raised, the impossibility had been demonstrated by plaintiff, and the jury needed some instruction. See also Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684. However in the case before us the record does not reveal that the plaintiff made any showing of such impossibility, and apparently no attempt was made to do so. The appellants appear instead to have taken the position that this burden was on the appellees and here argue such to be the case. The showing of...
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Vanskike v. ACF Industries, Inc.
...and the appellate court will not disturb the district court's ruling unless there has been an abuse of discretion. McDonald v. United Airlines, Inc., 365 F.2d 593 Nevertheless, juries cannot be told directly or in effect that they may consider punishment or deterrence as an element of damag......
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Rowe v. Munye, No. A03-465.
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...whose act of negligence was the cause of the trauma, is responsible for the entire damage.' See also McDonald v. United Airlines, Inc., 365 F.2d 593, 594 (10 Cir. 1966); Hylton v. Wade, 29 Colo.App. 98, 99--100, 478 P.2d 690, 691 (1970); Winn-Dixie Stores, Inc. v. Nafe, 222 So.2d 765, 766 (......
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...shall compensate the plaintiff for the entire harm, citing Restatement (Second) of Torts § 433A(2)); McDonald v. United Airlines, Inc., 365 F.2d 593, 594 (10th Cir. 1966); Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, 99 S. Ct. 2753, 2756, 61 L. Ed. 2d 521 (1979) (noting......
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An Overview of the Law of Negligence in Kansas
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