Mueller v. Mueller

• Citation: 88 S.D. 446,221 N.W.2d 39
• Decision Date: 30 August 1974
• Docket Number: No. 11293,11293
• Parties: Margean MUELLER, Plaintiff and Respondent, v. Eric MUELLER, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 39

221 N.W.2d 39

88 S.D. 446

Margean MUELLER, Plaintiff and Respondent, v. Eric MUELLER, Defendant and Appellant.

No. 11293.

Supreme Court of South Dakota.

Aug. 30, 1974.

Sam W. Masten, Canton, for plaintiff and respondent.

Deming Smith, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

DUNN, Justice.

Plaintiff, Margean Mueller, was awarded a verdict of $1.00 against the Defendant, Dr. Eric Mueller, in a jury trial held in Hutchinson County, South Dakota, in December 1972. This verdict was based on a malpractice complaint in which the plaintiff alleged that Defendant had subjected her to an intense administration of steriods over an extended period of years without using the reasonable skill and care required in the use of this drug, resulting in a deterioration of her bone structure and eventually in the collapse of her right hip. From a denial of a motion for judgment notwithstanding the verdict, and the granting of a motion for a new trial, the Defendant appeals, claiming: (1) The Plaintiff failed as a matter of law to establish a cause of action against the Defendant; (2) the Plaintiff failed to object to the verdict at the time of its return and before discharge of the jury and thus waived any irregularity in the verdict; (3) the jury verdict of $1.00 was tantamount to a verdict for the Defendant and should have been allowed to stand; and (4) the trial court failed to properly instruct the jury under the facts of the case. We affirm.

The contentions of the Defendant must be considered in the framework of the two fundamental issues before the Court on appeal:

(1) Did the trial court err in not granting a directed verdict or judgment notwithstanding the verdict for the Defendant under the facts of the case?

(2) Did the trial court abuse its discretion in granting a new trial on all of the issues of the case?

Viewing the evidence in the light most favorable to the Plaintiff, we have the testimony of the Plaintiff as to the Defendant's intense administration of cortione to her over a period of seven years and of her deteriorating bone condition as the years went by; the Defendant's admission that he did administer various steriod drugs during this period and the deterioration of her general condition; the testimony of Dr. Porter, who was qualified as an expert medical witness, that the Defendant had not exercised the required standard of skill and diligence in the community in administering this drug over an extended period; the testimony of the expert, Dr. Jackson, relating Plaintiff's condition to an excessive and prolonged use of cortisone; and finally, the testimony of Dr. Gross, an orthopedic surgeon, confirming the diagnosis of Dr. Jackson and directly relating the use of cortisone to the breakdown in Plaintiff's right hip which necessitated surgery as a direct result thereof. There was a direct conflict of testimony as to any warnings given to the Plaintiff by the Defendant, and this, together with some evidence of addiction, made the issues of informed consent, contributory negligence, and assumption of risk questions for the jury. We conclude that the Plaintiff did establish a cause of action as a matter of law and that the trial court did not err in failing to grant a directed verdict or a judgment notwithstanding the verdict for the Defendant.

Defendant's contention that the Plaintiff waived any irregularity in the verdict by failing to object at the time of its return and before the discharge of the jury is without substance. The verdict, while inadequate, was regular and consistent on its face. The procedure outlined in SDCL 15--14--30 for correcting a verdict works well where a verdict is irregular on its face and can be easily corrected as in the case where interest is omitted or the foreman fails to sign the verdict. Here, however, we have no reason to second guess the jury or their verdict. The real holding in Walters v. Gilham, 1927, 52 S.D. 82, 216 N.W. 854, relied on by Defendant in his brief, was that the trial court cannot substitute its findings for that of the jury. If the trial court finds that an injustice has been done, its remedy lies in granting a new trial, which was suggested in Walters, supra, and which was done in this case.

This Court could join with counsel in surmising what the jury meant by a verdict for the Plaintiff in the amount of $1.00, but we find this to be a useless pastime. The trial court heard the evidence and granted an application for a new trial on the grounds of inadequate damages. This was within the court's sound discretion and finding no abuse of that discretion under the facts of this case, we will not interfere. Our position on the granting of a new trial for inadequate damages is fully set out in Gould v. Mans, et al., 1967, 82 S.D. 574, 152 N.W.2d 92:

'An application for a new trial on the ground of inadequate damages is addressed to the sound judicial discretion of the trial court. Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924. There are no exceptions including a verdict in a personal injury action for the amount of medical specials only as such verdicts may be explainable and sustainable. Our only function, in each case, is to determine whether or not there has been an abuse of discretion. In this respect orders granting new trials stand on firmer ground than orders denying them as they are not conclusive or decisive of any rights or issues. Jensen v. Miller, 80 S.D. 384, 124 N.W.2d 394.'

We conclude that the trial court did not abuse its discretion in granting the Plaintiff a new trial.

In view of the fact that this case is going back for retrial, we have examined the instructions of the trial court and the objections of the Defendant to certain of these instructions.

This Court has followed two...