Nelson v. Ackermann

• Decision Date: 24 May 1957
• Docket Number: No. 37070,37070
• Parties: Glenda H. NELSON, Appellant, v. A. P. ACKERMANN, Respondent.
• Court: Minnesota Supreme Court

Page 500

83 N.W.2d 500

249 Minn. 582

Glenda H. NELSON, Appellant, v. A. P. ACKERMANN, Respondent.

No. 37070.

Supreme Court of Minnesota.

May 24, 1957.

Syllabus by the Court

1. Where a physician states his opinion as to the causal relationship of injuries for which plaintiff sues to recover and an accident which occurred some time prior to the suit, the jury is not required to accept such opinion, even though it is not contradicted, if the jury would be justified in disbelieving the facts, whether hypothetical or otherwise, upon which the opinion is based.

2. Where a physician-patient privilege is asserted by a party to an action seeking recovery for personal injuries and the nature and extent of the injuries are involved, it is not error to require the one asserting the privilege to do so in the presence of the jury or to permit fair comment by the adverse party on his inability to examine an attending physician concerning his examination and treatment of the patient.

Thomas K. Scallen, Minneapolis, for appellant.

Gallagher, Farrish, Sheran & Zimmerman, Mankato, for respondent.

KNUTSON, Justice.

Appeal from an order denying plaintiff's motion for a new trial.

This case arises out of a collision in which an automobile owned and operated by plaintiff's husband was struck from the rear by a motor vehicle operated by defendant, a state highway patrolman. The trial court directed a verdict on the issue of defendant's negligence and plaintiff's contributory negligence, the propriety of which is not involved here. As a consequence, only those facts essential to a consideration of the issues presented on this appeal will be stated.

On the evening of November 24, 1953, plaintiff, Glenda H. Nelson, was riding as a passenger in an automobile owned and operated by her husband, Norris C. Nelson, on State Trunk Highway No. 169. At a point approximately two miles north of Mankato, the car was traveling south on its right side of the highway at a speed of about 30 to 35 miles an hour when it was struck in the rear by an automobile driven by defendant, who was then acting as a state highway patrolman. Mrs. Nelson was thrown forward, striking her head on the windshield. Mr. Nelson was thrown against the steering wheel, and his hat flew into the rear seat of the car. Mr. Nelson shortly left his car to survey the damage to his car, which included a bent rear bumper, a dent in the shield at the back, a broken taillight, and a dent in the fender. Damage to defendant's car was slight. Plaintiff also left the car after remaining therein for a short time, and neither plaintiff nor her husband thought at the time that they were injured. After the collision, plaintiff and her husband drove home. The following day was Thanksgiving. Plaintiff testified that she felt stiff and sore the next day and had headaches and pain in the lower part of her back.

Plaintiff was 42 years of age, weighed 163 pounds, and was five feet two inches tall. She had been pregnant seven times, three of which resulted in miscarriages. One miscarriage occurred shortly after the collision, but it is conceded that the collision had no connection therewith.

Prior to the accident both Mr. and Mrs. Nelson had received treatment for various things at the Mankato Clinic. On the afternoon of the first day of the trial, Mrs. Nelson was examined by Dr. Mervin W. Dobson, a specialist in surgery, who testified that plaintiff had suffered a prolapsed intervertebral disc as a result of the collision. Plaintiff did not call any of the attending physicians or the doctors who had treated her prior to the accident and subsequent thereto.

Separate actions were commenced by Mr. and Mrs. Nelson, but they were consolidated for trial. The jury returned a verdict in favor of Mr. Nelson for $2,000 and in favor of plaintiff 'in the sum of ($0.00) None Dollars.' No appeal has been taken from the verdict in favor of Mr. Nelson, so the issues involved in that case will not be discussed except insofar as they affect the trial of Mrs. Nelson's case.

The contentions of plaintiff are: (1) That the verdict in her favor for no dollars was perverse; (2) that the verdict was inadequate and contrary to law and not justified by the evidence; and (3) that the court erred in allowing counsel for defendant to cross-examine plaintiff as to whether she would assert the privilege between physician and patient and in allowing counsel for defendant to comment on the assertion of the privilege in his final argument to the jury.

1. On the first two issues presented, it is apparently the contention of plaintiff that, inasmuch as there was no medical testimony to contradict the opinion of Dr. Dobson that plaintiff had suffered a prolapsed disc as the result of this accident, the jury was compelled to find that the injuries which Dr. Dobson found at the time of the trial were the result of the accident, under the rule of O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430.

In several cases we have held that the rule of the O'Leary case is not an absolute one but that the jury may disregard the positive testimony of a witness, although he is not contradicted by other witnesses--

'* * * if his testimony is impeached and made improbable by reasonable inferences drawn from the surrounding physical facts and circumstances as disclosed by the record.' Knudson v. Nagel, 238 Minn. 186, 191, 56 N.W.2d 420, 423. ¹

That rule is particularly applicable to opinion evidence. Where the jury may disbelieve the evidence upon which the opinion rests, whether it be based on assumed hypothetical fact or, as here, on a history given by a patient to her doctor it must follow that the opinion is no more conclusive than the basic fact. In this case, Dr. Dobson based his opinion on statements of plaintiff that prior to the accident she had no headaches, backaches, or the other symptoms of a ruptured disc which Dr. Dobson found at the time of the trial. The evidence is undisputed that immediately after the accident neither Mr. Nelson nor plaintiff believed that she was injured. According to her own testimony, plaintiff did not consult a doctor until several months after the accident. None of the doctors who had attended her were called as witnesses. Dr. Dobson's opinion was far from conclusive or convincing. He first stated that plaintiff was suffering from a prolapsed intervertebral disc. When he was asked if he had an opinion as to whether this condition was the result of the collision, he said:

'Well, injury can cause these things all right. It would be just hard to say whether that particular injury was the cause of that.'

He further testified:

'Q. Will you state, Doctor, whether or not in your opinion it is most likely that the collision and the injury sustained in the collision is a probable cause of the disc?

'A. Injury to a back of any nature is thought to be one of the causes of a ruptured intervertebral disc.

'Q. Is this history of the collision significant to you in this particular case with an absence of any other evidence of trauma?

'A. Well, with nothing more to go on than the history it would certainly be highly suggestive that this accident was the cause of this lady's back troubles leading to a ruptured intervertebral disc.'DC Pressed for an answer based on a hypothetical question in which he was asked to assume certain facts, his answer was equally unsatisfactory. He then stated:

'Q. And what is your opinion? A. My opinion is that she received enough stress and strain at that time to give her these symptoms, which followed, the sequalae.

'Q. What sequalae do you mean, Doctor? A. Sequalae means the things that follow, the sequence after an accident of this sort, which may include the symptoms, signs and the diagnosis.'

On cross-examination, he admitted that the condition he found could have been the result of many other causes as well as the accident. He admitted further that his opinion was based on the history he obtained from plaintiff. In that respect he said:

'Q. * * * what is it that leads you to trace that ruptured intervertebral disc back to a period two and a half years before-- A. I have nothing but the patient's history to go on. I believe her and that is all I have to go on.

'Q. That is the point, you trace it back to that because of her history? A. Because of her history, yes.'

It is apparent from reading the testimony of Dr. Dobson that in his own mind he was not too convinced that the condition he found at the time of the trial was traceable back to the accident. At least, his testimony was not so convincing that the jury would be compelled to accept his opinion. It would be useless to recite in more detail the evidence on this phase of the case. It is enough to say that the evidence is not so conclusive on the issue of causal relationship between the accident and the physical condition of plaintiff which Dr. Dobson found upon examination of her some two and one-half years later that it presented only a question of law. The burden rested on plaintiff to prove the causal connection. The jury was justified in finding that plaintiff had not sustained her burden of proof. ² The court having directed a verdict on the issue of negligence and contributory negligence in favor of plaintiff, it is obvious that the jury either found that the injuries which Dr. Dobson found at the time of the trial were not a result of the accident or found that plaintiff had failed to sustain her burden of proof on this issue; consequently, that there was no proof of damages traceable to the accident. Under these circumstances, the verdict was not perverse.

2. Plaintiff testified that the morning following the accident she was stiff and had severe headache and her back started hurting her. She said that sometime subsequent to the collision she went to see Dr. Howard of the Mankato Clinic who had been the family physician for a number of years. She testified that she told Dr. Howard that she was having...