Thornburg v. Perleberg

• Citation: 158 N.W.2d 188
• Decision Date: 15 April 1968
• Docket Number: No. 8378,8378
• Parties: Doris THORNBURG, Plaintiff and Respondent, v. Lyle PERLEBERG, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

Page 188

158 N.W.2d 188

Doris THORNBURG, Plaintiff and Respondent, v. Lyle PERLEBERG, Defendant and Appellant.

No. 8378.

Supreme Court of North Dakota.

April 15, 1968.

Syllabus by the Court

1. The commission of an act cannot be proved by showing the commission of similar acts by the same person at other times.

2. While it was improper for the plaintiff to ask the defendant whether he did not have a record of accidents and traffic violations, where the court sustained objection to such question and in its charge instructed the jurors that any questions or answers which had been stricken from the record should not be considered, there was no prejudicial error, and denial of a motion for mistrial was proper.

3. Temporary dozing is not gross negligence, in the absence of a prior warning of the likelihood of sleep.

4. Instructions must be considered as a whole, and, if the instructions given fully and fairly present the law applicable to a certain issue, such instructions are sufficient even though the court refuses to give a certain requested instruction in the exact form in which it is presented.

5. A medical witness should be permitted to testify only to reasonable medical probabilities or medical certainties. Where, on redirect examination, a dental witness was asked whether there was a possibility that a certain result might occur, and he stated that there was a possibility that it might, but on further cross-examination he stated positively that in this case it was his opinion, within the realm of reasonable medical probability or certainty, that such event would not occur, there was no prejudicial error.

6. Generally, a picture stands on the same footing as a diagram or a map, and where such picture is shown to be relevant to describe a certain thing, fact, or condition in the case, as was done by showing the jury how the plaintiff's fracture was wired, such picture is admissible for the limited purpose of explaining the witness's testimony and in assisting the jury in understanding the testimony relative to the procedure followed in treatment of the injury.

7. Where a foundation is laid for use of such picture in connection with a witness's testimony by showing that the picture portrays the same conditions found in plaintiff's case, it should be admitted in evidence even though it does not portray plaintiff's own injuries. In such case, the picture is admissible as demonstrative evidence and may be used by the witness to explain his testimony.

8. It is error to permit inquiry as to the financial condition of either party in an action in which only compensatory damages may be awarded.

9. Where plaintiff was asked why she had not had dental and medical work done on her mouth prior to trial, the court's overruling of an objection to such question was error, and witness's answer that she could not afford it was prejudicial.

10. Testimony as to the conviction of the defendant in a criminal prosecution is not admissible in evidence in a civil action to establish the truth of the facts in which such conviction was rendered.

11. For reasons stated, judgment of the district court is reversed and a new trial is ordered.

Lanier, Knox & Shermoen, Fargo, and William L. Paulson, Valley City, for plaintiff and respondent.

Mackenzie & Jungroth, Jamestown, for defendant and appellant.

STRUTZ, Judge.

The plaintiff brings this action for damages arising out of a motor-vehicle accident. It is conceded that, at the time of the accident, the plaintiff was riding as a passenger in the automobile driven by the defendant, and was a guest within the provisions of Chapter 39--15, North Dakota Century Code. The issues in the case are limited to plaintiff's claim that her injuries were proximately caused by the gross negligence of the defendant.

The jury returned a verdict for the plaintiff. After the return of such verdict, the defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied. The defendant thereupon took this appeal from the judgment entered on the verdict and from the order denying his motion for judgment notwithstanding the verdict or for a new trial.

On the night of the accident, the plaintiff, a seventeen-year-old junior in Sanborn High School, went with some friends to a dance in Courtenay. While at the dance, she met the defendant, a Jamestown radio announcer, who was selling tickets at the door. She had met the defendant on at least one previous occasion. At the close of the evening, he asked to take her home and she consented. The injuries for which this action was brought were suffered in a one-car accident on Interstate No. 94 while the defendant was taking the plaintiff home. As a result of such accident, the plaintiff suffered a broken jaw, facial cuts, lacerations, damage to her teeth, and a fractured collarbone.

In support of his appeal, defendant has served a number of specifications of error, raising insufficiency of the evidence and predicating error on rulings of the court in admission of evidence and in instructions to the jury.

The plaintiff may recover only if she establishes gross negligence of the defendant as the proximate cause of the accident resulting in her injuries. We have held that gross negligence is no care at all or is the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care practically willful in its nature. Rubbelke v. Jacobsen, 66 N.D. 720, 268 N.W. 675; Norgart v. Hoselton, 77 N.D. 1, 39 N.W.2d 427; Holcomb v. Striebel (N.D.), 133 N.W.2d 435.

The question of gross negligence ordinarily is a question of fact for the jury, and becomes a question of law for the court only where the evidence is such that reasonable minds can draw but one conclusion therefrom. Grenz v. Werre (N.D.), 129 N.W.2d 681. While the defendant contends that the evidence is insufficient to support the verdict in this case, we have examined the record and cannot say that reasonable minds could draw but one conclusion therefrom. We cannot say that the evidence is insufficient to support the verdict.

The next specification of error which we will consider is that the court erred when it failed to grant a mistrial when counsel for the plaintiff asked the following question on cross-examination of the defendant:

'Q. As a matter of fact, Mr. Perleberg, you have a constant record of accidents and traffic violations, do you not?'

This question clearly was improper, and the trial court properly sustained the defendant's objection thereto. The general rule is that the commission of an act cannot be proved by showing the commission of similar acts by the same person at other times. 29 Am.Jur.2d Evidence, Sec. 298, p. 342. Thus evidence of reputation for care or lack of care or of proneness to accident is inadmissible on the issue of negligence.

The purpose of the question obviously was to prejudice the jury, and it was improper. The trial court sustained the defendant's objection. The court also, in its charge, advised the members of the jury that any questions or answers which had been stricken from the record were not in evidence and should not be considered by the jurors in any manner in arriving at their verdict. The court thus did everything it could to avoid any adverse effect of the plaintiff's improper question.

Under these circumstances, was it error to deny the motion for mistrial? A motion for mistrial should be granted only if the interests of justice require it. This court has held that declaring a mistrial is an extreme remedy, to be resorted to only when there is a fundamental defect in the proceedings of a trial or when something has happened during the trial which makes it evident that further proceedings would be productive of manifest injustice. Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282. We do not believe that the asking of this improper question was so prejudicial, in the light of the trial court's subsequent instructions, that it required the granting of the motion for mistrial.

We next will consider the defendant's specification that the trial court erred when it refused to give the following requested instruction:

'Temporary dozing is not gross negligence, in the absence of a prior warning of the likelihood of sleep.'

The above language was approved by this court in the case of Holcomb v. Striebel (N.D.), 133 N.W.2d 435. The record discloses that the trial court gave the following instruction:

'In order to constitute gross negligence in falling asleep while driving there must have been such prior warning of the likelihood of sleep that continuing to drive constitutes reckless disregard of consequences.'

This court repeatedly has held that the refusal to give a requested instruction is not error where the charge as given fully and fairly covers the issues referred to in the requested instruction. Myers v. Hagert Construction Co., 74 N.D. 435, 23 N.W.2d 29; Peterson v. Bober, 79 N.D. 300, 56 N.W.2d 331; Haugen v. Mid-State Aviation, Inc. (N.D.), 144 N.W.2d 692; Bartholomay v. St. Thomas Lumber Co. (N.D.), 148 N.W.2d 278.

We believe that the instruction given by the court fully and fairly covers the issue of continuing to drive after warning of the likelihood of sleep, and that there was no prejudicial error in the court's refusal to give the defendant's requested instruction.

We now consider the defendant's contention that it was error for the trial court to permit the dentist who testified for the plaintiff to testify as to the possibility of the plaintiff's losing more teeth in the future as a result of the injuries which she received in the accident. On cross-examination, the dentist had stated that it was his opinion that the nerves of the plaintiff's injured teeth would not die and that the plaintiff would not lose more teeth. On redirect, he was asked if there was a 'possibility' that some of these...