Nelson v. Johnson

• Decision Date: 05 December 1925
• Citation: 41 Idaho 697,243 P. 647
• Parties: THOMAS NELSON, Respondent, v. EPHRIAM JOHNSON, Appellant, and JOSEPH JOHNSON, Defendant
• Court: Idaho Supreme Court

243 P. 647

41 Idaho 697

THOMAS NELSON, Respondent, v. EPHRIAM JOHNSON, Appellant, and JOSEPH JOHNSON, Defendant

Supreme Court of Idaho

December 5, 1925

DAMAGES - APPEAL AND ERROR - SUFFICIENCY OF EVIDENCE - INSTRUCTIONS-EXCESSIVE VERDICT-PHYSICIAN'S TESTIMONY-PRIVILEGED INFORMATION.

1. Where there is substantial evidence to support the verdict the same will not be disturbed.

2. It must be made to clearly appear that a verdict was given under the influence of passion or prejudice before it may be set aside as excessive.

3. It is not erroneous to refuse requested instructions where the subject matter thereof is properly covered by those given.

4. A physician may not testify, without the consent of his patient, concerning any matter which would disclose information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge. Action for damages for personal injuries and damage to automobile. Verdict for plaintiff. Affirmed.

G. F Hansbrough and Peterson & Coffin, for Appellant.

Where the verdict is contrary to the evidence, or is manifestly or decidedly against the evidence, or clearly against the weight of the evidence, or is supported by insufficient evidence, a new trial will be granted. (20 Stand. Ency. Proc. 517-520; Bagley v. Eaton, 8 Cal. 159; Payne v Jacobs, 1 Cal. 39; Roach v. Gilmer, 3 Utah, 389, 4 P. 221; Wendell v. Safford, 12 N: H: 171 Leitensdorfer v. King, 7 Colo. 436, 4 P. 37; State v. Trego, 25 Ida. 625, 138 P. 1124.)

Where the evidence is sufficient only to give rise to a mere conjecture in favor of the plaintiff, or to suggest merely a possibility of the truth being as claimed by him, or the evidence in his favor is contrary to all reasonable probabilities, the matter should not be submitted to a jury but the court should grant a motion for a nonsuit, or should direct a verdict for the defendant without a motion. (Chybowski v. Bucyrus Co:, 127 Wis. 332, 106 N.W 833, L. R. A., N. S., 357; Hyer v. City of Janesville, 101 Wis. 371, 77 N.W. 729; Sorenson v. Menasha Paper Co., 56 Wis. 338, 14 N.W. 446; Agen v. Metropolitan Ins. Co., 105 Wis. 217, 76 Am. St. 905, 80 N.W. 1020; Spencer v. Chicago, M. & St. P. Ry. Co., 105 Wis. 311, 81 N.W. 407; Stafford v. Chippewa Valley Elec. Co., 110 Wis. 331, 85 N.W. 1036.)

Where no personal injury is shown and the only damages proven was a damage to property of $ 300, a judgment for $ 1,500 is excessive. (Maloney v. Winston Bros. Co., 18 Ida. 740, 111 P. 1080, 47 L. R. A., N. S., 634; Chitty v. St. Louis & I. M. & S. R. Co., 166 Mo. 435, 65 S.W. 959.)

Whitcomb, Cowen & Clark, for Respondent.

Though the preponderance of evidence is in favor of appellant, the court will not disturb the verdict and judgment where there is substantial evidence supporting the contention of respondent. (Meeker v. Trappett, 24 Ida. 198, 133 P. 117; Flynn's Idaho Digest, p. 53; Fritcher v. Kelley, 34 Ida. 471, 201 P. 1037; Mahaffey v. Carlson, 39 Ida. 162, 228 P. 793.)

Instructions should be confined to the issue presented by the pleadings and the evidence. An instruction not meeting these requirements may properly be refused. (38 Cyc: 1612, notes 13 and 16; 1617, note 34; Intermountain Farmers' Equity v. Norris, 39 Ida. 685, 229 P. 745.)

If a requested instruction is erroneous, either wholly or in part, it is properly refused. (38 Cyc. 1707, note 98; 14 R. C. L., p. 800, sec. 60, note 8; State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 425.)

GIVENS, J. Wm. E. Lee, Budge, and Taylor, JJ., concur.

OPINION

GIVENS, J.

Action by Thomas Nelson, respondent, for personal injuries and damage to his automobile claimed to have been caused by Ephriam Johnson, appellant, and Joseph Johnson, by a collision between the automobiles belonging to the respective parties.

The appeal is from the judgment on a verdict for $ 1,500 against Ephriam Johnson and an order denying a new trial.

Appellant contends that the evidence as insufficient to show that he or anyone collided with respondent's car or that respondent knew who collided with his car or that he received any injury. The most that can be said in favor of appellant's position in this regard is that there is sufficient evidence in the record to have sustained a verdict in his favor. Where, however, the evidence is conflicting; and there is substantial evidence in the record to support the verdict, it will not be disturbed (Singh v. McKee, 38 Ida. 656, 225 P. 400; Walling v. McMillan Sheep Co., 40 Ida. 513, 234 P. 152), and such is the situation herein.

The trial court granted one retrial and refused a second, and it is not clearly, manifest that he abused his discretion in so doing. (Baillie v. City of Wallace, 22 Ida. 702, 127 P. 908.)

Appellant urges that the verdict of the jury was contrary to and in disregard of the instructions of the court, particularly No. 12A, which was a modification of requested instruction No. 6, with reference to alleged admissions by the respondent immediately after the accident, that he did not know who caused the accident; the instruction in effect was that if the jury found that the admissions had been made, and later changed at the trial without satisfactory explanation therefor, and also found that there was evidence independent of this that the appellant struck the car of respondent, then their verdict should be for the appellant. This instruction was very favorable to appellant and placed his theory of the case squarely before the jury, but the jury evidently did not believe appellant's theory, and as the evidence was conflicting as to such statements and there was other evidence tending to show that appellant's car struck respondent's, the verdict was not out of harmony with such instruction.

Appellant says that the damages for $ 1,500 were excessive and given under passion or prejudice. The car damaged beyond repair was valued at $ 300; $ 25 for medical expense was actually expended; loss of respondent's time was shown to be approximately $ 100, with one doctor bill, amount unknown, still to be paid, leaving a balance of approximately $ 1,000 for respondent having his chest; back, wrist and leg bruised and his band and arm permanently injured to the extent that his lifting power therewith was greatly diminished and that he occasionally suffered pain therein. There is no evidence or intimation in the record that the jury was actuated by any bias or prejudice in awarding this sum or that the instructions given were not in keeping with the evidence adduced. In such a case the presumption arises that the jury took into consideration all the elements of damage set out in the instructions and that the damages given were not excessive or given by reason of any passion or prejudice, and we see no occasion to disturb the verdict. (Cox. v. Northwestern Stage Co., 1 Ida. 376; Maw v. Coast Lumber Co., 19 Ida. 396, 114 P. 9; Maloney v. Winston Bros., 18 Ida. 740, 111 P. 1080, 47 L. R. A., N. S., 634; Ellis v. Ashton & St. Anthony Power Co., ante p. 106, 41 Idaho 106, 238 P. 517.)

Requested instruction No. 1 was fully covered by instruction No. 12A.

Requested instruction No. 2 was covered by instructions 1, 8 and 12 as far as applicable to the issues involved.

It was not alleged that the car of appellant wilfully, wrongfully and intentionally struck respondent's car as stated in requested instruction No. 2, but that appellant wilfully, etc., drove across the road so as to, and did strike respondent's car.

Requested instruction No. 3 was properly refused as it was not confined to the issues and misstated the pleading as follows:

"The jury is instructed that the plaintiff charges in his...