Plank v. Heirigs

• Decision Date: 14 February 1968
• Docket Number: No. 10412,10412
• Parties: L. L. PLANK, Special Administrator of the Estate of Bernice Ebright, Deceased, Plaintiff and Respondent, v. Vincent HEIRIGS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 193

156 N.W.2d 193

83 S.D. 173

L. L. PLANK, Special Administrator of the Estate of Bernice

Ebright, Deceased, Plaintiff and Respondent, v. Vincent HEIRIGS, Defendant and Appellant.

No. 10412.

Supreme Court of South Dakota.

Feb. 14, 1968.

Davenport, Evans, Hurwitz & Smith, Robert C. Heege, Sioux Falls, for defendant and appellant.

Doyle & Bierle, Yankton, for plaintiff and respondent.

HOMEYER, Judge.

On December 7, 1965, Bernice Ebright sustained a severe head and brain injury when an automobile driven by her husband in which she was riding collided with the rear end of a trailer loaded with baled hay which was being pulled upon a public highway by a tractor owned and operated by the defendant. On May 18, 1966, L. L. Plank as her guardian ad litem sued defendant to recover for permanent injuries, pain and suffering, and medical expenses. Bernice Ebright died on August 20, 1966, and Plank was appointed special administrator of her estate and substituted as plaintiff in the pending action.

A jury awarded plaintiff $30,000 in damages and the defendant appeals. The questions presented require no detailed statement of facts. Such as are

necessary will appear in the discussion that follows.

Alleged error in restricting cross-examination on

other possible actions.

At the commencement of trial and in the absence of the jury plaintiff moved the court to admonish counsel for the defendant to refrain from alluding to any other lawsuits that may result from the accident. ¹ The motion was granted. At the close of all the evidence, defendant asked the court to rescind its ruling which it refused to do. ²

In this state, a cause of action for medical expenses and pain and suffering survives the deceased person and is maintainable, SDC 1960 Supp. 33.0414-1, Lanning v. Schulte, S.D., 149 N.W.2d 765, Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170, and in addition an independent cause of action exists for wrongful death on behalf of designated beneficiaries. ³ SDC 1960 Supp. 37.22; Rowe v. Richards, 32 S.D. 66, 142 N.W. 664, L.R.A.1915E, 1069. The husband, if he so chose, could also sue for loss of consortium from the date of the accident to the date of his wife's death, Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669, Binegar v. Day, 80 S.D. 141, 120 N.W.2d 521, and for his own personal injuries, if he sustained any, and for property damage to his automobile.

An adverse witness on cross-examination may be required to disclose any facts which tend to show bias and interest in the action so that the trier of fact may consider it in weighing his testimony. Hanson v. Township of Red Rock, 7 S.D. 38, 63 N.W. 156; 58 Am.Jur., Witnesses, § 721, p. 389; 98 C.J.S. Witnesses § 539, p. 476. Benefits accruing to a witness from a favorable termination of litigation are always competent and may be shown and considered as bearing on the credit to be accorded to testimony given.

It would have been entirely proper for the defendant on cross-examination to have inquired of the husband and children of the decedent who were witnesses for the plaintiff as to their interest in the action. The husband was legally responsible for the medical bills of the decedent and would be interested in seeing that defendant was held liable therefor and he and the children were heirs of the decedent and as such may have been entitled to share in her estate after debts and other charges were paid. The record is devoid of interrogation concerning this interest in the litigation, although the ruling of the court did not restrict the defendant in this regard and only required him to refrain from alluding to other possible actions arising out of the accident.

Generally, in civil actions courts have allowed one party to cross-examine an opponent's witness concerning a pending civil suit involving the same subject matter. Kunz v. Munzlinger, Mo.Supp., 242 S.W.2d 536; Ellsworth v. Ellsworth, Tex.Civ.App., 151 S.W.2d 628; Currie v. Langston, 92 Mont. 570, 16 P.2d 708; Timm v. Schneider, 203 Minn. 1, 279 N.W. 754. Sometimes interest has been permitted to be shown by asking about pending suits which a witness has growing out of the same accident, but refusal to allow inquiry concerning the nature of the injuries sued for or the amount of damages sought, has been said to be no abuse of discretion. Eden v. Klaas, 166 Neb. 354, 89 N.W.2d 74. Cross- examination of a witness as to claims which might be asserted if the party for whom he was testifying prevailed has also been permitted for the purpose of showing bias and prejudice. Poore v. Boston & Maine Railroad, 77 N.H. 595, 90 A. 791; Ferguson Seed Farms, Inc. v. McMillan, Tex.Com.App., 18 S.W.2d 595, 63 A.L.R. 1009.

The extent to which a witness may be cross-examined as to facts which are otherwise immaterial for the purpose of testing his reliability and to show bias and prejudice is ordinarily within the discretion of the trial court and much latitude is to be allowed in this line, and unless an abuse of discretion is clearly shown either in allowing or restricting such cross-examination, this court will not interfere with the ruling of the court below. Holdridge v. Lee, 3 S.D. 134, 52 N.W. 265; State v. Kenstler, 44 S.D. 446, 184 N.W. 259; State v. Goff, 79 S.D. 138, 109 N.W.2d 256.

We would have been better satisfied had the trial court allowed cross-examination concerning other claims and possible actions in which some of plaintiff's witnesses had an interest and could benefit by a favorable result in the instant action since such interest could be considered by the jury in weighing their testimony. Nevertheless, when considering the nature of the testimony of these witnesses, its cumulative character, and the relationship of these witnesses to each other and to the subject matter of the action, we are unable to perceive how defendant could have been prejudiced. Certainly the jury knew in the absence of cross-examination concerning other actions that a husband and children are interested and apt to be biased in their testimony in an action involving a wife and mother, whether she be deceased or still alive, and would take this into account in weighing their testimony. Likewise, as we have stated supra, the court did not restrict defendant in cross-examination as to their interest in the pending action although defendant chose not to inquire in that regard. Such cross-examination would not have been in violation of the ruling of the court. The burden was upon appellant to show not only error but prejudicial error. Alberts v. Mutual Service Casualty Insurance Co., 80 S.D. 303, 123 N.W.2d 96. In our opinion he has failed to do this. See also 61 RCP on Harmless Error. ⁴

Claimed misconduct of jury.

Appellant contends the trial court erred when it denied a new trial under 59a(2) RCP, formerly SDC 1960 Supp. 33.1605(2) because of misconduct of the jury in returning what he claims is a quotient verdict. Affidavits of two jurors were submitted with the motion for new trial, one of which was later corrected and in effect repudiated, which show a verdict was reached 'by a resort to the determination of chance' under the rule of Long v. Collins, 12 S.D. 621, 82 N.W. 95. On the other hand ten of the jurors submitted affidavits in which they stated after it was determined plaintiff was entitled to recover and after a number of ballots on specific amounts of damages, it was suggested each write on a separate piece of paper an amount believed to be reasonable and then see what the average would be; that this was done; that there was no advance agreement that such average would be the final verdict; that no juror relinquished his right to afterward object, but reserved such right should he think the sum unreasonable. Three of the jurors in addition positively swore that a separate ballot on $30,000 as damages was later taken and approved. The latter affidavits (10) presented a situation substantially similar to what occurred in Abdenor v. Gould, 45 S.D. 101, 186 N.W. 120, when this court held if the method used is merely to ascertain what each juror considers reasonable reserving the right to object if he thinks it unreasonable a verdict free from chance may be obtained and should stand. This rule has been consistently followed since that decision. See cases in West's Dakota Digest, Trial, k315.

The affidavits of the jurors presented a disputed question of fact with at least ten jurors committed to or tending to one version and one or two in opposition on what transpired within the confines of the jury room. The trial court resolved the dispute in favor of respondent and upheld the verdict. We agree with this ruling. Stene v. Hillgren, 78 S.D. 1, 98 N.W.2d 156.

Alleged error in admitting as evidence nurses' hospital notes.

The court admitted into evidence hospital records consisting of nurses' notes. We hold they were properly admitted. Exhibit 12 covers the period from December 9, 1965 to December 22, 1965, when Mrs. Ebright was a patient in St. Joseph Mercy Hospital at Sioux City, Iowa. Exhibit 13 contains nurses' notes of Sacred Heart Hospital at Yankton from the date of the accident before her removal to Sioux City. Exhibit 14 consists of nurses' notes--Sacred Heart Hospital--December 22, 1965 to February 16, 1965. ⁵ These exhibits were offered and received under the Uniform Business Records as Evidence Act, SDC 1960 Supp. 36.1001 et seq., with foundation for their introduction made through the custodian of such records from each institution.

We have not heretofore had occasion to consider whether hospital records are within the scope of the Act. Courts are not in agreement on the question. See annotations 75 A.L.R. 378 and 120 A.L.R. 1124, 26 Am.Jur., Hospitals and Asylums, § 6.

In Clark v. Bergen, 75 S.D. 48, 59 N.W.2d 250, we held scale slips of quantities used in road construction made in the regular course of business were properly admitted under the Act. In Bentz v. Cimarron...