Perry v. Bertsch

• Decision Date: 20 May 1971
• Docket Number: No. 20404.,20404.
• Citation: 441 F.2d 939
• Parties: Marilee K. PERRY, Appellee, v. Marian BERTSCH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

441 F.2d 939 (1971)

Marilee K. PERRY, Appellee, v. Marian BERTSCH, Appellant.

No. 20404.

United States Court of Appeals, Eighth Circuit.

April 28, 1971.

Rehearing Denied May 20, 1971.

Patrick A. Conmy, Bismarck, N. D., for appellant; Morris A. Tschider, Bismarck, N. D., of counsel.

William A. Strutz, Fleck, Mather, Strutz & Mayer, Bismarck, N. D., for appellee.

Before MEHAFFY and HEANEY, Circuit Judges, and MEREDITH, Chief District Judge.

MEHAFFY, Circuit Judge.

On November 3, 1965 about 3:30 or 4:00 p. m. Mrs. Marilee K. Perry, the plaintiff, was injured in an automobile accident at the intersection of Avenue C and Fifth Street in the City of Bismarck, North Dakota. Plaintiff, accompanied by her oldest daughter, Tracey, approximately four years of age, was driving a Volkswagen. Plaintiff was traveling East and defendant, Mrs. Marian Bertsch, driving a Lincoln Continental, was traveling North, the cars colliding in the southwest corner of the intersection. It was clear and sunny and the pavement was dry. Both cars were being driven at moderate rates of speed. Plaintiff testified that she was driving approximately fifteen miles per hour and defendant approximately five miles or from five to seven miles per hour. The Lincoln Continental was only slightly damaged in the area of the left front grille and headlight and defendant was not injured. Plaintiff's Volkswagen was considerably damaged in the right front area.

Plaintiff stated that when she first saw defendant's car it was about thirty feet from the intersection and plaintiff was then about fifty feet from the intersection. Plaintiff testified that she sort of threw herself across in front of her daughter to try to keep her from getting hurt and her daughter fell off the seat underneath her and onto the floor. The child received a cut finger and bruises but was not seriously hurt. Plaintiff's head hit the windshield and her knees hit the dashboard and one knee was cut. A tool box in the back of the car was thrown forward, landing behind Mrs. Perry who was bounced against it.

After investigation of the accident was completed, plaintiff and her daughter were taken home and shortly thereafter her husband took them to Quain & Ramstad Clinic in Bismarck for examination and treatment. The hospital records showed that plaintiff complained of a cut on her knee, a bump on her head, and headaches, and listed her daughter's injuries as bruises. She was examined by Dr. Earl Peterson and released with the suggestion that her condition would probably improve with time and the request that she return the following week for a checkup.

When she returned to the clinic she was complaining of back pain and was X-rayed. Dr. Peterson's report showed contusion of the mid-forehead, the right knee and the mid-back, but X-rays of the spine were negative.

Defendant offered no testimony at the trial and the jury returned a verdict for $350,000.00. The only issue presented to this court is the asserted excessiveness of the verdict. After careful consideration, we have concluded that the verdict, if allowed to stand, would be a plain injustice as it is in our view monstrous and shocking. We, therefore, reverse and remand for a new trial.

We are not unmindful that Professor Moore in 6A Moore, Federal Practice ¶ 59.086, at 3834 (2d ed. 1966), characterizes this circuit, along with the Second Circuit, as the most adamant expounders of the old doctrine of nonreviewability of decisions on motion for new trial based on the excessiveness of damages, or that this circuit is even probably more reluctant to set aside or order a remittitur in excessive damage judgments than most, but this can be said to be one of those rare cases where the verdict shocks our conscience. We will refer primarily to plaintiff's testimony and to that of her physicians to show the extent of the personal injuries.

At the time of trial plaintiff was twenty-seven years of age. She was wearing glasses at the time of the accident and had worn them since she was ten years of age for nearsightedness. On November 20, 1965, she complained of blurred and double vision and was referred to Dr. Edwin Perrin, an eye, ear, nose and throat specialist at the Clinic, who found that she had esophoria, i. e., her eyes were focusing in too much at close range. She had one degree of esophoria for distance vision of twenty feet, which is considered acceptable, and three degrees for vision as close as sixteen inches, which is abnormal. Dr. Perrin noted that with regard to vision at twenty feet the Civil Aeronautics Administration would permit an individual to fly a plane with two degrees of esophoria (where the eyes turn in) or exophoria (where the eyes turn out) since a person's eyes would pull that much. He concluded that plaintiff had no impairment of distance vision. Since, however, she was nearsighted and wore glasses the doctor suggested that she could have prisms, or prismatic lenses, to take care of the diplopia, or double vision, but at that time plaintiff thought her vision would improve and did not then obtain the prisms. The retinas of her eyes were normal and she had no apparent diseases. Dr. Perrin diagnosed her condition as "sixth nerve paresis," i. e., a weakness of the sixth nerve, causing her eyes to turn in. He said he could not definitely say that the esophoria was caused by the accident, but that plaintiff told him she had never had it before and that she had a blow on her head which had been known to cause muscle imbalance, and, therefore, it was a medical probability that the esophoria resulted from the accident.

On November 24, 1965 plaintiff was referred by Dr. Peterson, who was leaving the Clinic, to Dr. Dale Orien, an otolaryngologist on the Clinic's staff.¹ He testified concerning Dr. Peterson's records which were introduced into evidence. When Dr. Orien saw her, plaintiff was complaining of diplopia and low back pain which radiated down her right leg. The examination revealed that the range of motion of the lumbar spine appeared normal. She had no deficit in her muscle strength, no sensory loss, and her deep tendon reflexes were normal, all of which indicated that she had no neurologic deficit at that time. She was tender, however, over the right paralumbar muscles, a large bundle of muscles which extend on both sides of the lumbar spine to hold the trunk in a normal position to keep the body erect, and she had tension or spasm there. The doctor saw her again on December 1, 1965, and plaintiff continued to complain of pain over the low thoracic spine or upper lumbar region but did not complain as before of pain extending into her leg. She had slight tenderness over the interspinous ligament in the area of the tenth and eleventh thoracic spine, but no apparent spasm, and her deep tendon reflexes and sensation in motor function of her lower extremities were normal. Dr. Orien felt that she was improved.

In December, 1965, about a month after the accident, plaintiff went to California where she lived with her husband's parents for a while and later with his sister. She consulted three eye doctors while she was in California, and in March of 1966 she and her children went to live with her sister in Boise, Idaho and she consulted an eye specialist there. On April 22, 1966 plaintiff went back to Dr. Perrin for an examination and he found her vision was normal for distance but she still had three and one-half degrees of esophoria for close vision and she was seeing double at closer than approximately sixteen inches.

In October, 1966 plaintiff moved to Ketchikan, Alaska to stay with her parents, and again sought advice and treatment from an eye doctor. In June of 1968 she and the children moved to Seattle, Washington and in September, 1968 to Hermiston, Oregon where they lived until October, 1969. At that time they moved with her parents to Spring Lake, North Carolina, where they were residing at the date of trial.

A Dr. Smith in Ketchikan, Alaska suggested eye exercises which she performed under his supervision for about six weeks with no noticeable benefits, and various doctors changed her lenses. The first set of prisms she had were prescribed by Dr. Smith and they were the clip-on type. The glasses she wore at the date of trial were prescribed about one and one-half years before by Dr. Horstfield in Seattle and they had prisms ground in. She said they made it a little easier for her to concentrate for a longer period of time but that she still saw double.

On February 13, 1968 Mrs. Perry entered the Providence Hospital in Seattle and underwent a spinal fusion the following day performed by Dr. John Nilan, an orthopedic surgeon. Upon her initial visit to Dr. Nilan she complained not only of double vision and frontal headaches, which increased with the use of the eyes and with increased tension, but also complained of pain in her right hip and shoulder, weakness, blueness, numbness and swelling of her right arm, and dizziness and blackout spells. He examined her and took some x-rays of the cervical and spinal area and the skull, finding it normal, but noted a compression deformity at C 5-6 level, the interspaces, for which he recommended the use of a cervical collar. He again examined plaintiff on June 26, 1968 at which time she was complaining of a tightening across her shoulders and down the mid-back, numbness of her back, right hand, right arm and right leg, worse headaches, increased blurring and double vision. He referred her to an opthalmologist for her visual problems and conducted a cervical discogram, which showed that with relation to numbers five and six there was a disintegration of approximately fifty per cent. He said that once a disc is violated and the normal fluid is lost it dries out and becomes functionless. He recommended the removal of the involved discs and an anterior cervical fusion which was accomplished on February 14, 1968. Plaintiff was hospitalized at that time for...