McGovern v. Murray Taxi Co., 9348

• Decision Date: 28 September 1953
• Docket Number: No. 9348,9348
• Citation: 60 N.W.2d 211,75 S.D. 151
• Court: South Dakota Supreme Court
• Parties: McGOVERN v. MURRAY TAXI CO.

Page 211

60 N.W.2d 211

75 S.D. 151

McGOVERN v. MURRAY TAXI CO.

No. 9348.

Supreme Court of South Dakota.

Sept. 28, 1953.

H. R. Hanley and John M. Costello, Rapid City, for defendant and appellant.

John C. Farrar, Rapid City, for plaintiff and respondent.

BAKEWELL, Circuit Judge.

The defendant, in an action for damages for personal injury appeals from a judgment for the plaintiff. Plaintiff's injury resulted from being struck by a taxicab driven by the defendant's employee. The collision occurred on April 25, 1951. The action was commenced on May 3, 1951, and was tried on November 13, 1951. The jury returned a verdict in favor of the plaintiff for $8,000. A motion for judgment non obstante veredicto was denied as was also a motion for a new trial, and on April 2, 1922, a judgment was entered in favor of the plaintiff. The appellant assigns numerous errors including denial of its motion for a new trial on the ground among others that the verdict of the jury was excessive and urges that there was no competent evidence of permanent injury to warrant submission of that question to the jury as an element of plaintiff's damage.

The complaint alleges neither a permanent injury, a diminution of future earning power, or that plaintiff will suffer pain and suffering in the future. As the elements of his claimed damage, plaintiff alleges that he '* * * was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of One Thousand Dollars, all to his damage and detriment in the sum of Twenty Thousand Dollars.'

In reference to his injuries, the plaintiff testified:

'I was hurt all over. My face and shoulder was all scratched and my pelvis was broken. My worst hurt was my pelvis and shoulder and back. I left the hospital around the first of July. After I left the hospital, I was able to get around very little at first. I was on crutches around a month at home. I get around pretty well now. I still have pain in my back and left shoulder but mostly in my hips and have trouble with swelling of my ankles, but not as bad as when I got out of the hospital. I don't gain weight anymore and am fifteen pounds lighter. I am a carpenter foreman. I went back to work about a month ago. Sometimes I am able to work full days and some days not.'

The record discloses these specific questions asked of and answered by the plaintiff:

'Q. Are you able to work full time? A. No.

'Q. Are you able to do as much now as before you were injured? A. Not over half.

'Q. Why is that? A. Well, my shoulder and back has been bothering me so bad I can't rest at night, and I ached.

'Q. In what way does your shoulder bother you? A. It seems stiff and aches.

'Q. Is your condition improving? A. It seems to. It hasn't improved in the last three weeks at all. Got worse.'

Plaintiff's physician in attendance, Dr. Owen, called as a witness by the plaintiff testified that the fractures were well healed and that as time goes on the callus, or healing material

'will become firmer and an exact part of the bone, but for all purposes the fractured ends are very strong there at the present time.'

Dr. Owen further testified that plaintiff had complained of a painful shoulder. On inquiry as to whether the pain in the shoulder would be a permanent thing, the doctor stated that he did not believe it would be a permanent injury unless other factors set in which are unforeseen at the present time.

Dr. Lemley, as a witness for the defendant, testified as to an examination of the plaintiff made by him on July 25, 1951. He testified that this examination disclosed that plaintiff had a fracture of the pelvic bone; two fractures in the same bone. These were well healed and the pelvis was in good shape. There was no deformity or shortening of the legs and X-rays were made of his neck and his lumbar vertebrae, that is the vertebrae in the lower part of the back, his pelvis and shoulders. The only injury found was the fractures of the pelvis which I just stated were well healed and in good condition. As to plaintiff's shoulder, Dr. Lemley stated that the X-ray examination showed no injury--no bony changes. In his physical examination, the ligaments of the shoulder were stiff and sore and, on extreme motion of the shoulder, produced some pain. As to the pain across the back and hips, Dr. Lemley expressed the opinion that plaintiff had hypertrophic arthritis commonly known as rheumatism of the lumbosacral function which is the joint between the pelvis and the back bone, and of the lumbar vertebrae making up the lower spine causing the stiffness and soreness.

Dr. Lemley further testified as to another examination of plaintiff made on November 7th, he stated that the X-ray findings were similar to those at the previous examinations. The shoulder joint was still stiff and sore but had quite a wide range of motion and there was then no condition existing of a permanent nature referrable to the accident. Dr. Lemley described the term 'hypertrophic arthritis' as being the result of aging. He said it produced a bony overgrowth in and around the joints and in the ligaments of the joints; that it is a gradual disease and an injury will make the soreness and symptoms of it worse but does not affect the course of the disease particularly, as time goes on. An injury wouldn't hasten the disease, it will just give it more soreness for a while. A person that is older can recover from injury, but this hurts them longer than does an injury. Asked if he had determined any numbness of plaintiff's fingers of the right hand, Dr. Lemley stated that plaintiff had a Dupuytren's contraction which he described as a scarring which occurs at the base of the fingers and in the palms of the hands and causes a limitation of finger motion. It was Dr. Lemley's expressed opinion that this could not have been caused by the collision or from any recent injury, but only from a steady long-continued strain over a period of time--a jarring condition such as transmitted by a hammer handle pounding; that he had seen it in piano players. He expressed the opinion that the contraction in the hand and fingers was neither sustained nor aggravated by the accident.

On inquiry as to a swelling of plaintiff's legs and ankles, Dr. Lemley testified that there was a moderate swelling. Asked if this swelling was referrable to the injuries sustained in the collision the doctor testified that the swelling could be due to an injury insofar as it distorts the circulation; that being in bed for a long time following the accident, it is the usual course of events that the feet and ankles and legs may swell a little bit from the fact that he has been in bed and his circulation has not been kept up and that it is usual that the legs will swell after an accident. Asked whether in the course of his examination he found anything else present in the form of disease of the circulatory system which could have caused the swelling, Dr. Lemley testified that plaintiff had hardening of the arteries which means there are flakes of calcium all along the larger vessels and in the abdominal aorta, but that this does not necessarily mean that the swelling is due to the arterial disease nor to the accident, but one might aid the other.

To entitle respondent to recover damages for a permanent injury he has the burden of showing with reasonable certainty that the condition of his back and shoulder of which he complains is the result of the collision, and that this condition is permanent. In Shuck v. Keefe, 205 Iowa 365, 218 N.W. 31, the claimed injury was to the right sacroiliac articulation and the pelvic region. The only testimony offered by the plaintiff as to the permanency of the injury was her purely subjective symptoms. There was no evidence of experts that corroborated her claim, nor evidence as to whether the injuries were...