Teegarden v. Dahl

• Decision Date: 30 November 1965
• Docket Number: No. 8229,8229
• Citation: 138 N.W.2d 668
• Parties: Etta TEEGARDEN, as surviving wife of I. H. Teegarden, deceased, and Etta Teegarden, individually, Plaintiff and Respondent. v. Math DAHL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 668

138 N.W.2d 668

46 A.L.R.3d 708

Etta TEEGARDEN, as surviving wife of I. H. Teegarden deceased, and Etta Teegarden, individually Plaintiff and Respondent. v. Math DAHL, Defendant and Appellant.

No. 8229.

Supreme Court of North Dakota.

Nov. 30, 1965.

Syllabus by the Court

1. Instructions should be confined to the issues presented by the evidence and instructions on issues or matters not warranted by the evidence should not be given. The refusal to give an instruction which is inapplicable under the evidence is not error. For this reason we hold it was not error to refuse to give a requested instruction relating to stopping on the highway as the evidence does not warrant it.

2. It is not error to refuse to receive, over proper objection, evidence for the sole purpose of contradicting answers of an adverse witness given on cross-examination to questions upon irrelevant and immaterial matters. Such answers are conclusive against the examiner.

3. It was not error to permit the driver of a vehicle involved in a rear-end collision to testify that she did not stop on the highway because she had testified she did not recall the impact when her vehicle was struck from behind where it is clear from her testimony she did recall events leading up to the impact.

4. Where the court instructed the jury pertaining to certain traffic regulations favorable to the defendant, but failed to instruct that proof of violation constituted evidence of negligence, it was not prejudicial error warranting a new trial when the evidence does not sustain the instruction.

5. Section 39-10-08(2), N.D.C.C., providing any vehicle moving at less than normal speed of traffic, at the time and place and under conditions then existing, shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, does not require that such a vehicle be driven upon the shoulder of the highway on a four-lane highway, merely because the shoulder consists of an eight-foot tarred surface.

6. It was not error to refuse to receive evidence, over objection, of the normal speed of traffic upon a highway as foundation for an instruction that the other driver should have been driving in right-hand traffic lane on a four-laned highway when the evidence establishes, on facts not in dispute, that the other driver was driving in right-hand lane at time of accident.

7. The admission in evidence of the local undertaker's bill as an exhibit of the total funeral expense for which he billed in a wrongful-death action, which bill contains a charge made by another undertaker at the place of interment remotely located, and the admission in evidence of the interring undertaker's bill indicating he billed the first undertaker, is merely in proof of a charge made by the first undertaker as set forth in his billing and is not evidence in support of double funeral expenses, nor was it confusing to the jury.

8. Evidence of the future plans of the deceased and his wife, the plaintiff, in a wrongful-death action, which relate to a gainful occupation, is not evidence in support of damages for loss of society and companionship but in support of damages for pecuniary loss and is admissible where the court instructed the jury, as it did here, that damage could not be allowed for loss of society and companionship or in way of solatium.

9. The arrangement of the instructions in a charge to the jury rests in the discretion of the trial court. We agree the arrangement of the instructions in this case is not a model arrangement but we find the instructions as a whole correctly state the law and it appears from the whole record the jury was not misled; therefore, we find the arrangement does not constitute reversible error.

10. In an action to recover damages for wrongful death, evidence as to the income of the deceased, during the year immediately preceding his death, from farm products raised by the deceased and resulting principally from his own labor and efforts, was admissible to throw light on the quality and value of the earning capacity of the deceased.

11. A medical expert's finding that plaintiff had normal blood pressure before the accident, that it had appreciably increased after the accident, that he was of the opinion plaintiff suffered injury to her brain which affected the center of the brain stem which controls blood pressure, that at the time of trial several months after the accident plaintiff still had a higher-than-normal blood pressure, and that her high blood pressure condition was permanent, was sufficient foundation to permit the admission of the medical expert's opinion that plaintiff's blood pressure was aggravated by the accident.

12. Where medical evidence establishes plaintiff's insulin requirements were increased from 32 units per day to 45 units per day, before and after the accident, and that her diabetic condition was permanently aggravated by the accident, it was not error to admit plaintiff's testimony as to the cost of the insulin in proof of special damages on the ground that it is speculative because the medical expert on cross-examination testified insulin requirements of persons of plaintiff's age category may change. Nor was it error, as being evidence of the cost of treating a pre-existing condition, when the evidence was utilized to show an increase in the cost of insulin.

13. It was not prejudicial error, as being speculative, to admit the testimony of a medical expert as to the sequence of various types of treatments prescribed for a known injury when it was established as foundation that out of a given number of people a certain number will not respond to the first type of treatment of the sequence prescribed. It was merely a statement of fact as to the course of treatment normal to a known condition.

14. In the absence of a request for an appropriate instruction, the failure of a trial court to instruct the jury does not constitute prejudicial error unless, in the light of the evidence, the nondirection constitutes misdirection.

15. The admission or rejection of color photographs is largely within the discretion of the trial court.

16. The color photographs admitted in evidence have been viewed by this court and the evidence relative to them read. It appears they correctly portray the subject matter. They do not convey a false impression and their probative value outweighs the possibility of undue prejudice. For this reason we find the trial court did not abuse its discretion when it admitted them in evidence and permitted them to be taken into the jury room with the rest of the exhibits.

17. Counsel has great latitude in presenting his argument to the jury, subject to the regulation and control of the trial court whose duty it is to confine the argument within proper limits.

18. It is permissible for counsel in his argument to the jury in a personal injury suit to use and display a chart or other medium upon which is written the hospital bills, doctor bills, ambulance bills, or any other item which has been admitted in evidence by the court.

19. Where argument of counsel to the jury is not made a part of the record, it must be presumed it was within the record and proper inferences drawn therefrom.

20. Reversal will not be granted because of allowance of cross-examination on a collateral matter, unless appellant sustains the burden that it resulted in prejudice.

21. An appellant who charges that the trial court erred in its instructions to the jury has the burden of showing of affirmatively by the record that the instruction challenged operated to his prejudice and prevented a fair trial.

22. A motion for new trial on the ground that damages appear to have been given under influence of passion and prejudice is addressed to the sound judicial discretion of the trial court and the appellate court will not reverse the trial court's order on that ground, unless an abuse of discretion is clearly shown. We have carefully reviewed the evidence and, under the circumstances, cannot say, as a matter of law, that the verdict is excessive or that the trial court abused its discretion when it denied new trial on this ground.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for appellant.

Nilles, Oehlert & Nilles, Fargo, for respondent.

TEIGEN, Judge.

This appeal is taken by the defendant from an order denying his motion for new trial or a reduction of the verdict in lieu of a new trial. A jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $12,500 for her personal injuries and $17,500 for the wrongful death of her husband. The action stemmed out of an automobile accident on U. S. Highway 10, about eight-tenths of a mile west of West Fargo, North Dakota. It occurred about 5:00 p.m., October 9, 1963. The plaintiff was injured and her husband was killed when a pickup truck, being driven by the plaintiff, turned over after it was struck in the rear by an automobile driven by the defendant. Both vehicles were proceeding in a westerly direction in the north or right traffic lane. The highway was a paved four-lane highway. It had an eight-foot tarred shoulder and two twelve-foot paved traffic lanes for westbound traffic and a similar combination to the south for eastbound traffic. The eastbound and westbound traffic lanes were separated by a median which was four feet wide and about four inches high. The accident occurred on a clear, dry day and the highway was in good condition. There was no other traffic in either of the two westbound lanes in the vicinity of the accident. The plaintiff and her husband had just taken delivery of a new 1964 Studebaker pickup truck at Fargo and were driving it to their home at Hunter, North Dakota. The plaintiff was driving. Her husband sat beside her. She testified she was driving from 30 to 35 miles per hour in the right westbound lane but had no recollection of her vehicle being...