Strong v. Williams
| Decision Date | 22 October 1969 |
| Docket Number | No. 11673,11673 |
| Citation | 460 P.2d 90,154 Mont. 65 |
| Parties | Melvin J. STRONG, Plaintiff and Respondent, v. Walter Donald WILLIAMS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Garnaas, Murray, Hall & Riley, J. Robert Riley and Harold L. Garnaas, Missoula, argued, for appellant.
Jordan, Campbell & Sheridan, Robert E. Sheridan, Jr., Missoula, argued, for respondent.
This is an appeal by the defendant from a judgment entered following a $15,000 jury verdict for the plaintiff and from the denial of defendant's motion for a new trial. The district court directed a verdict for the plaintiff on the question of liability, submitting the question of damages to the jury. This ruling is not appealed from.
From the record it appears that plaintiff was injured in an automobile accident which occurred about 10:45 p. m. on May 9, 1968, about one mile east of Missoula, Montana. Plaintiff was driving his 1949 Chevrolet from home to his job at Van Evan Company in Missoula when he was struck from the rear by defendant's automobile. Defendant was apparently travelling much faster than plaintiff and, by his own admission, had fallen asleep at the wheel. As a result of this accident plaintiff's neck was severely strained and he began experiencing neck pains that subsequently required him to miss many days of work. He ultimately lost his job at Van Evan Company because of so much lost work. Plaintiff has been to several doctors and has had several treatments for his neck. He has not been able to carry on his usual type of work which requires hard, manual labor, and he states that he cannot get a job of this kind because employers do not wish to hire him after learning he has had an accident of this kind. Plaintiff has had several jobs since the accident but lost them shortly because he could not perform the hard work involved. At the time of trial plaintiff was working as a gas station attendant, at a much lower rate of pay than he received at the Van Evan Company.
Defendant assigns six specifications of error on this appeal.
(1) Whether the lower court erred in refusing to allow the defendant to read the original complaint in his opening statement.
Whether the evidence introduced by plaintiff was sufficient to justify the court (2) in giving an instruction on damages for future medical expenses; (3) in giving an instruction on damages for loss of wages; (4) in giving an instruction on damages for impairment of future earning capacity.
(5) Whether the court erred in refusing to give defendant's proposed instruction No. 18.
(6) Whether the evidence was sufficient to justify the verdict.
During the trial defense counsel attempted to read the original complaint in his opening statement. Plaintiff's counsel objected that it had been superseded by the pretrial order. The court sustained the objection. The court did say that counsel could read from the pretrial order which the court thought used almost the same words.
A recent decision of this Court, Fox v. Fifth West, Mont., 454 P.2d 612, is relied on by defendant to support his contention that it was reversible error for the lower court to refuse to allow him to read the original complaint in his opening statement. Our holding in the Fox case applied to the use of the original complaint in cross-examination and we said there it was harmless error when the lower court refused to allow the defendant to use such complaint since defendant accomplished the same result in his careful, detailed cross-examination of the plaintiff. Here defendant wished to use the complaint in his opening statement to show plaintiff's inconsistent pleadings. This is not the purpose of the opening statement. The practice of reading the original complaint on the opening statement may have had some validity prior to the present Rules of Civil Procedure, but today it is of no value whatever. The defendant had a sufficient opportunity to expose to the jury any discrepancy between the complaint and the pretrial order during his cross-examination. The defendant here did not attempt to bring this matter up on its cross-examination of the plaintiff. Thus the refusal on the part of the court to allow defense counsel to read the complaint in his opening statement, if error at all, was merely harmless error and could easily have been corrected on cross-examination had defendant taken the opportunity to do so at that time.
Issue 2, 3 and 4 concern certain instructions given by the court. The defendant does not object to the form of the instructions given since they were taken from the Montana Jury Instruction Guide. Rather he contends there was not sufficient evidence introduced by the plaintiff which would support the giving of such instructions.
It is well settled in this jurisdiction that wherever there is a conflict in the evidence this Court may only review the testimony for the purpose of determining whether there is any substantial evidence in the record to support the verdict of the jury, and we must accept the evidence there found as true, unless that evidence is so inherently impossible or improbable as not be be entitled to belief. Where the evidence is conflicting, but substantial evidence appears in the record to support the judgment, the judgment will not be disturbed on appeal, and this is especially true when the district court, as here, has passed upon the sufficiency of the evidence on motion for a new trial and upheld its sufficiency. Batchoff v. Craney, 119 Mont. 157, 172 P.2d 308; Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587. The evidence must be viewed in the light most favorable to the prevailing party. If that evidence sustains the verdict then we must sustain the action of the trial judge. Batchoff v. Craney, 119 Mont. 157, 172 P.2d 308.
The defendant did not produce any conflicting evidence as to future medical costs of the plaintiff and therefore we must determine whether the evidence submitted by plaintiff was sufficient to give an instruction thereon. The plaintiff testified that he had an appointment to see his doctor within the month concerning his neck. The plaintiff's doctor testified that he believed that the plaintiff would require future medical treatments and also that he predicted it would be at least a year before pla...
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...there found as true, unless the evidence is so inherently impossible or improbable as not to be entitled to belief. Strong v. Williams (1969), 154 Mont. 65, 460 P.2d 90. Weinberg v. Farmers State Bank (Mont.1988), 752 P.2d 719, 45 St.Rep. Donald G. Bottrell and Edward T. Reeve are stockhold......
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