Rondinelli v. Bowden

• Decision Date: 22 March 1973
• Docket Number: No. 3--672A19,3--672A19
• Citation: 155 Ind.App. 582,35 Ind.Dec. 556,293 N.E.2d 812
• Parties: Anthony RONDINELLI, Appellant, v. Jessie M. Harmon BOWDEN, Appellee.
• Court: Indiana Appellate Court

Page 812

293 N.E.2d 812

155 Ind.App. 582

Anthony RONDINELLI, Appellant, v. Jessie M. Harmon BOWDEN, Appellee.

No. 3--672A19.

Court of Appeals of Indiana, Third District.

March 22, 1973.

Saul I. Ruman, Hammond, for appellant.

Robert D. Hawk, Gary, for appellee; Spangler, Jennings, Spangler & Dougherty, Gary, of counsel.

HOFFMAN, Chief Judge.

The issue presented by this appeal is whether the damages awarded plaintiff-appellant Anthony Rondinelli were inadequate.

On December 30, 1966, an automobile driven by Anthony Rondinelli was struck in the rear by an automobile driven by defendant-appellee Jessie M. Harmon Bowden. The instant action was instituted by Rondinelli filing his complaint for personal injuries alleging, inter alia, the negligence of Mrs. Bowden in the operation of her automobile. Judgment was prayed for in the amount of $100,000. Special damages sustained by Rondinelli were later shown to be approximately $4,500. Following a change of venue the cause was tried to a jury which returned its verdict, finding for plaintiff-Rondinelli and against defendant Bowden and assessing plaintiff's damages in the sum of $5,000. Judgment was entered on the verdict. Plaintiff-Rondinelli timely filed his motion to correct errors which was overruled by the trial court and this appeal followed.

On appeal the liability of Mrs. Bowden is unquestioned. Rondinelli only questions the sufficiency vel non of the judgment.

To determine if the verdict is inadequate the same rules must be applied as if the verdict were being challenged as excessive. In Henschen v. New York Cent. R. Co. (1945), 223 Ind. 393, at 399, 400, 60 N.E.2d 738, at 740, it is stated:

'Aside from cases where damages are a mere matter of computation this court will reverse a cause for excessive damages only where, after examining the evidence concerning the injuries, it is apparent that the amount of damages assessed by the jury is so large as to indicate that the jury in assessing the amount was motivated by prejudice, passion, partiality or corruption, or considered some improper element. (Citing authorities.) * * *

'In a case of this kind the extent of the compensation is largely a jury question and does not admit of fixed rules and mathematical precision.'

See also:

Green v. Oakley (1969), 145 Ind.App. 307, 310, 311, 250 N.E.2d 594, 596, 597.

Rondinelli raises certain issues which he argues impeded the fairness of the trial and were responsible for the inadequacy of the verdict.

The first issue argued by Rondinelli is,

'1. The Court erred in permitting appellee's counsel to cross-examine appellant concerning other accidents in which plaintiff had been involved when plaintiff had testified on direct examination he had not been injured in any of the said accidents.'

The record before us indicates that Rondinelli was cross-examined about three accidents--one occurring in 1946, one occurring in 1959, and one occurring in 1969.

The general subject of other accidents was opened during the direct examination of Rondinelli when he testified that he was involved in accidents in 1946 and 1969 but that he was not injured in either accident.

In Indiana, where the direct examination of a witness opens up a general subject, the cross-examiner may ask any relevant question on the general subject. Brindle v. Harter (1965), 138 Ind.App. 692, 697, 211 N.E.2d 513 (transfer denied), Vogel v. Harris et al. (1887), 112 Ind. 494, 14 N.E. 385. Thus, the question becomes whether evidence of these three other accidents is relevant to the issue of damages in the instant case.

The general rule is that cross-examination and other evidence is admissible to lay a basis for impeachment or show that the injury complained of is due to some other cause where the present injury and the prior injury or condition are similar, or where a causal relationship between them can be shown. Anno., 69 A.L.R.2d 593 (1960). Evidence concerning prior injuries must be elicited in good faith; not for the purpose of prejudicing the jury. Gordon v. Checker Taxi Co. (1948), 334 Ill.App. 313, 79 N.E.2d 632. Where the cross-examiner fails to come forward with evidence showing a logical nexus or causal relationship between the injury sued on and the prior injury or condition, the evidence will be subject to a timely motion to strike. Caley v. Manicke (1961), 29 Ill.App.2d 323, 173 N.E.2d 209. The test of admissibility is not probability, but possibility, i.e., testimony as to a prior accident is relevant where there is competent proof from which it could be inferred that the injury complained of is attributable to the prior or subsequent event. Paxton v. Misiuk (1961), 34 N.J. 453, 170 A.2d 16.

The cross-examination concerning the 1946, 1959 and 1969 accidents was proper and the testimony elicited was admissible if Bowden subsequently met her burden of going forward with the evidence by showing the relevance of the questions asked on cross-examination. The burden was on Bowden, the cross-examining party, to 'connect up' the other accidents to the injuries sued for.

The evidence contained in the record before us shows that approximately one-half hour after the accident on December 30, 1966, Rondinelli developed a headache. As time went by Rondinelli began to experience tingling and numbness in his hands and intermittent shooting pains down his arms. Just prior to February 10, 1967, approximately five weeks after the accident, Rondinelli saw a doctor for the problems he was experiencing. He was then referred to a neurosurgeon. Rondinelli was treated in the hospital for a narrowing between the fifth and sixth cervical vertebra but would not submit to an operation.

There is testimony that Rondinelli worked every day between 1967 and 1970. In 1969, Rondinelli was involved in another accident when the right rear fender of his automobile was struck by another car as he was attempting to make a left turn. Approximately one year after the 1969 accident Rondinelli entered the hospital for an operation.

Dr. Saavedra, a neurousurgeon who was called as a witness for the plaintiff, testified that he first saw Rondinelli on February 10, 1967, upon referral by Dr. Lewis. Dr. Saavedra placed Rondinelli in the hospital for tests which showed he had 'a filling defect' and a 'narrowing between the 5th and 6th vertebra of the beck.' Dr. Saavedra suggested that Rondinelli have an operation, however, Rondinelli elected to have treatments consisting of analgesics, pain killers, physical therapy and traction. Dr. Saavedra testified that his findings were compatible with a pinched nerve or displaced cervical disc.

After Rondinelli was released from the hospital on February 28, 1967, Dr. Saavedra saw him again on May 2, 1967, and July 5, 1967. Dr. Saavedra did not hear from Rondinelli again until October 23, 1970. On November 2, 1970, Rondinelli was admitted to the hospital for an operation. Tests conducted at that time showed 'more abnormalities' than in 1967, with narrowing between the 5th and 6th cervical vertebra and the 6th and 7th cervical vertebra. Dr. Saavedra stated his opinion that the injuries seemed to be due to the 1966 accident. There is also evidence that a pinched nerve could be caused by a hypertrophic spur formation.

Dr. Leo Roth, an orthopedic surgeon called as a witness for the defendant, testified that he examined Rondinelli on August 25, 1967. Dr. Roth testified as to his opinion that the narrowing of the intervertebral disc space between the 5th and 6th cervical vertebra with spur formation and the narrowing between the 6th and 7th cervical vertebra existed before the accident on December 30, 1966. Dr. Roth also testified that a spur formation can be caused by a single auto accident if an accident is severe enough and enough time (four or five years) passes. Dr. Roth also testified that the narrowing of the intervertebral disc spaces in most instances is due to normal wear and tear that occurs with aging.

As hereinabove stated, the burden of going forward with the evidence was on appellee-Bowden to show the link between the other accidents or conditions and the damages sued for, thus showing the relevance of the evidence concerning the other accidents. Here, the medical evidence was unable to pinpoint the problem or the cause thereof. It is inferrable from the evidence that the neck injury for which Rondinelli had an operation in 1970 was caused by the trauma of the automobile accident in 1966, natural wear and tear, a series of trauma or a combination of all of these causes. Evidence of other trauma and natural conditions was relevant because of the uncertain cause of the injury. The question was peculiarly one for the jury. The trial court did not err in permitting cross-examination of the plaintiff with regard to the other accidents. Nor was there error in permitting the investigating police officer of the 1969...