Spears v. Hough, 71-1128.

• Decision Date: 21 April 1972
• Docket Number: No. 71-1128.,71-1128.
• Citation: Spears v. Hough, 458 F.2d 529 (8th Cir. 1972)
• Parties: Kearney D. SPEARS, Appellant, v. Glenn L. HOUGH, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

458 F.2d 529 (1972)

Kearney D. SPEARS, Appellant, v.Glenn L. HOUGH, Appellee.

No. 71-1128.

United States Court of Appeals, Eighth Circuit.

April 21, 1972.

Byrd & Kustoff, Frank C. Byrd, Memphis, Tenn., George Beal, Rapid City, S. D., for plaintiff-appellant.

Thomas E. Simmons, Rapid City, S. D., Bangs, McCullen, Butler, Foye & Simmons, Rapid City, S. D., for appellee.

Before GIBSON and HEANEY, Circuit Judges, and VAN PELT, Senior District Judge.^*

VAN PELT, Senior District Judge.

This is an appeal by the plaintiff-appellant in a personal injury action, arising out of a pheasant hunting accident in South Dakota on October 17, 1965.The jury returned a verdict for plaintiff but assessed his damages as "none."Judgment was entered that plaintiff recover nothing from the accident.A timely motion for new trial was filed and overruled.We affirm the trial court.

The question on appeal is whether under the evidence a jury could find for plaintiff as it did and then return a verdict of no damage.

Plaintiff, a dentist from Memphis, Tennessee, and the defendant, an orthodontist from Pittsburgh, Kansas, in the company of seven or eight others from the two named states, were pheasant hunting in South Dakota.Defendant fired his shot gun at a pheasant which was flying toward the plaintiff.Plaintiff testified that he was then 50 to 60 yards away from the defendant.Other witnesses estimated the distance as 95 paces and at from 80 to 100 yards.Pellets struck plaintiff in the face and on the hand which he had raised for protection.Pellets also struck his clothing.The clothing was not penetrated.Bruises, which plaintiff described as "the prettiest bull's-eye you ever seen, . . . because of the bruises which were blood clots in the tissue itself," were found over his body, chest and legs.

Following the accident, plaintiff and defendant and a Dr. Tillman drove to Valentine, Nebraska, where plaintiff was treated at the Sand Hill Hospital.One pellet located superficially on the side of plaintiff's nose was removed.X rays were also taken.He had a pellet just below his right eye, two in the area of the jawbone — one on each side, and one near his little finger on his left hand.None of these pellets have ever been removed.At Valentine some circular bandages were placed over the places where the shot had entered the skin.Plaintiff then returned to the hunting area and hunted for the next three days.This action was filed in September, 1968, nearly three years after the accident.

A reading of the record convinces the court that the trial judge properly submitted the issue of defendant's negligence to the jury.It discloses that there was sufficient evidence from which the jury could find for plaintiff and against the defendant on the issue of negligence and contributory negligence.

The only question which needs to be examined on this appeal is whether the jury's verdict of no damage is a permissible verdict under the evidence.

It is undisputed that plaintiff had medical and hospital treatment at Valentine.Bills for this treatment or service were not identified or offered in evidence.Answers to interrogatories which are attached as Appendix 2 of appellant's brief in this court show expense at Valentine of $12.50 to the hospital and $25.00 to the Valentine Clinic.Since these answers are not in evidence, and plaintiff made no other effort to prove the amount of these charges, it is clear that it would have been pure speculation for the jury to have returned a verdict which included expense at Valentine.

Depositions from the doctors who had examined or treated the plaintiff were offered in evidence.There were four such doctors: a radiologist, Dr. Blumen; two ophthamologists, Dr. Holmes and Dr. Lewis; and a psychiatrist, Dr. Moore.The interrogatories described above show medical expenses to Dr. Lewis of $75, to Dr. Holmes of $42.50, and to Dr. Blumen of $60.However, the only testimony relating to medical charges was by Dr. Lewis, who testified that the charge for his services was $50.The nature of his services is hereafter discussed.

Dr. Blumen read certain X rays taken at Valentine and pointed out the location of the pellets in plaintiff's face.Dr. Holmes testified that only the pellet located below the plaintiff's right eye could possibly have a relationship to the plaintiff's eye problems, but even that pellet could not have affected the tearing or watering of the right eye since the pellet was securely lodged in the bone.Dr. Holmes stated that the plaintiff's eye problem was common among people aged forty or more who do close work.No abnormality or obstruction to the tear duct in plaintiff's right eye was found.It was Dr....