Selgado v. Commercial Warehouse Co.

• Citation: 526 P.2d 430,86 N.M. 633,1974 NMCA 93
• Decision Date: 21 August 1974
• Docket Number: No. 1271,1271
• Parties: Martin SELGADO and Lorencita W. Selgado, Plaintiffs-Appellees, v. COMMERCIAL WAREHOUSE COMPANY and Gary T. Cordes, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 430

526 P.2d 430

86 N.M. 633

Martin SELGADO and Lorencita W. Selgado, Plaintiffs-Appellees, v. COMMERCIAL WAREHOUSE COMPANY and Gary T. Cordes Defendants-Appellants.

No. 1271.

Court of Appeals of New Mexico.

Aug. 21, 1974.

[86 N.M. 636] Briggs F. Cheney, James R. Toulouse & Associates, P.A., Albuquerque, for appellants.

Lorenzo A. Chavez, Emmett C. Hart, Leof T. Strand, Albuquerque, for appellees.

OPINION

LOPEZ, Judge.

Plaintiff Lorencita Selgado was proceeding in a westerly direction on Interstate Highway 40 in Albuquerque near its intersection with Interstate Highway 25. She swerved to avoid a box which fell from a truck driven by defendant Gary Cordes who was acting within the course and scope of his employment with defendant Commercial Warehouse Company. She ran over the lid of the box, lost control of her automobile and struck a telephone pole. She and her husband sued for damages resulting from the personal injuries she sustained.

The jury returned a verdict in the sum of $18,000.00. From judgment upon the verdict, the defendants appeal, raising issues concerning: (1) sufficiency of the evidence to warrant an instruction on future damages; (2) reference to insurance; (3) contributory negligence; (4) mitigation of damages. We affirm defendants' liability but remand for a new trial on damages.

Future damages

The trial court instructed the jury that they could assess damages for loss of future earning capacity and for the cost of anticipated future medical care. The claim is that there was insufficient evidence to submit these issues to the jury. Similar issues were resolved in Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798 (1961). Both parties agree that Baros controls the issues raised here.

As to loss of earning capacity, the court in Baros stated:

'Accordingly, if it appears from the evidence that a person has a continuing disability resulting from the injury which has resulted in and will continue to result in loss of earnings, and there is proof of his age, occupation, rate of pay when working, and previous condition of health, there is sufficient to go to the jury even without proof of his earnings of any given period. . . .'

Defendants do not contend that there is no proof of age, etc. Rather, the contention is that there is insufficient evidence on the issues of the continuing nature of the disability and the cause of loss of earnings.

Dr. Emmett Altman, after summarizing Mrs. Selgado's condition, stated:

'. . . I think after this length of time she is probably at status quo. I do not think it will change a lot in the future. I think she will stay more or less as she is.'

This testimony is sufficient to establish the continuing nature of Mrs. Selgado's condition. See Morris v. Rogers, 80 N.M. 389, 456 P.2d 863 (1969); Alvillar v. Hatfield, 82 N.M. 565, 484 P.2d 1275 (Ct.App.1971).

Mrs. Selgado testified that since the accident she had not been able to perform her usual occupation of housework because of headaches and pain. Defendants argue that this is insufficient proof to establish a condition which caused and would continue to cause loss of earnings. They urge that we adopt a rule that where the disability is established by subjective complaints, expert testimony is needed to establish that it impairs earning capacity. See Morris v. Rogers, supra.

Even if we were disposed to adopt such a rule, (See Annot. 18 A.L.R.3d 88 at 101) we could not accept defendants' contention. The experts testified that they found objective evidence of pathology. Dr. Altman testified that X-rays taken at his direction indicated a loss of normal curvature in the cervical spine. Dr. Altman testified that in light of Mrs. Selgado's complaints, he had advised her to cut down on housework to avoid aggravating the neck and back and if she were unable to do housework, a surgical approach could be tried. Dr. Donald Morrison, a chiropractor, was able to identify muscle group weakness by the performance of various manipulative techniques. This medical evidence supports Mrs. Selgado's testimony of an inability to do housework for pay. Mrs. Selgado's testimony, combined with the medical testimony, is sufficient evidence to justify the instruction on loss of future earning capacity. Baros v. Kazmierczwk, supra.

As to future medical expenses, the court in Baros stated:

'In the instant case, the doctor who treated appellant was on the witness stand and testified concerning the possible future need for medical and surgical care. However, he was not asked to estimate what this might amount to in money. Neither is there any evidence in the case as to past medical cost which it might be argued could be used as a yardstick for future expense. . . .'

We have essentially the same situation here. Dr. Altman testified concerning the likelihood but not the cost of future surgical intervention.

Plaintiffs suggest that the jury could infer what future medical expenses would be on the basis of past expenses, which are in the record. We disagree. The past expenses for the conservative therapy, plastic surgery and chiropractic treatment which Mrs. Selgado received bore no relation to the contemplated future treatment, spinal surgery. The jury had no yardstick and we must remand for a new trial on damages. If sufficient proof is adduced on remand, an award would stand.

Insurance

We must also remand because the trial court erroneously rejected a tender of testimony as to damages by the defendants.

The accident involved in the case at bar occurred on June 8, 1970. Mrs. Selgado was involved in a later accident occurring on May 20, 1971. The automobile in which she was a passenger was hit broadside by another vehicle. An issue developed concerning whether Mrs. Selgado's condition at trial resulted from the later accident.

The plaintiffs sought recovery for certain medical bills incurred after the later accident. The defendants by their tender, sought to show not only that the later medical expenses were incurred as a result of the later accident, but also that many of Mrs. Selgado's injuries were derived from that cause. The substance of the tender was that the plaintiffs filed a proof of loss for injuries resulting from the May, 1971, accident with Allstate Insurance Company under a policy which in effect in May of 1971, but not in June of 1970. The company paid over $1,000.00 on this claim.

The trial court rejected the tender because of the collateral source rule. That rule, in New Mexico, is: 'Compensation received from a collateral source does not operate to reduce damages recoverable from a wrongdoer.' Trujillo v. Chavez, 76 N.M. 703, 417 P.2d 893 (1966). Thus, Mrs. Selgado may recover medical expenses incurred by defendants' negligence even though these items were paid for by insurance. Bailey v. Jeffries-Eaves, Inc., 76 N.M. 278, 414 P.2d 503 (1966).

As the defendants pointed out, its tender went to proximate cause; that is whether the medical bills and Mrs. Selgado's injuries were incurred as a result of the accident involving defendant, or as a result of a subsequent accident. See Morris v. Rogers, supra. Until it had been determined by the factfinder, in this case, the jury, that the bills and injuries in question were caused by defendants there was no basis for application of the collateral source rule. If causation was determined adverse to defendants, the collateral source rule would apply. Since causation was a contested issue in this case, the collateral source rule was not a proper basis for excluding the tendered evidence. Rather, the collateral source question should be handled by proper instruction to the jury.

Nor was the tendered evidence inadmissible because it injected insurance into the lawsuit. The fact of insurance is generally inadmissible because it is immaterial to the issues tried and because it is prejudicial. See Fort v. Neal, 79 N.M. 479, 444 P.2d 990 (1968); Falkner v. Martin, 74 N.M. 159, 391 P.2d 660 (1964).

Rule 411, New Mexico Rules of Evidence, § 20--4--411, N.M.S.A.1953 (Repl.Vol. 4, Supp.1973), states:

'. . . Liability insurance

'Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the...