Wilson v. Sorge
| Decision Date | 26 June 1959 |
| Docket Number | No. 37651,37651 |
| Citation | 97 N.W.2d 477,256 Minn. 125 |
| Parties | LaVonne WILSON, a minor, by Archie Wilson, her guardian ad litem, Respondent, v. Leonard SORGE, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. In an action for personal injuries where it appeared that defendant had violated M.S.A. § 169.18, subd. 8(b); that in so doing he was prima facie negligent; and that his negligence was the proximate cause of the accident, Held that defendant, having introduced no evidence to the contrary, the trial court properly directed a verdict against him on the issue of negligence.
2. The trial court did not commit error in admitting certain medical evidence.
3. Granting a new trial for misconduct of counsel rests almost wholly in the discretion of the trial court, and, although certain statements by plaintiff's counsel in his closing argument were improper, upon the record as a whole, the trial court did not abuse its discretion in not granting a new trial.
4. Loss or impairment of future earning capacity is an item of general damages. To recover therefor it is unnecessary that evidence of prior earnings be introduced. The loss is based upon such factors as age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry. Person v. Sears, Roebuck & Co., 252 Minn. 110, 89 N.W.2d 694, is expressly overruled.
Richard W. Johnson, Schermer & Gensler, Minneapolis, for appellant.
Cashman & Smith, Charles E. Cashman, Owatonna, for respondent.
This is an action for personal injuries arising out of a collision between plaintiff's automobile and defendant's truck. Plaintiff was traveling south on U.S. Highway 65 in Owatonna and intended to turn left onto North Street. She began signaling with her automatic turn signals about 150 feet from the intersection and, at the same time, began decreasing her speed. She stopped at the entrance to the intersection in order to yield the right-of-way to oncoming traffic. While so stopped she was struck from behind by defendant's tractor-trailer truck which, prior to the accident, had been traveling behind her at less than the 500 feet prescribed by M.S.A. § 169.18, subd. 8(b). 1 Although plaintiff had her foot on the brakes of her car at the time of the collision, it was thrown forward and came to rest 192 feet from the point of impact. Her injuries resulted in a 'twenty-five to thirty per cent permanent disability' in the 'use of the back and the neck' which prevents her from lifting heavy objects; from doing her housework as before; and from performing any of the chores which she formerly handled on her husband's farm.
At the close of plaintiff's case, defendant introduced some medical testimony and then rested. Plaintiff's motion for a directed verdict on the issue of liability was granted, and only the question of damages was submitted to the jury, which returned a verdict for plaintiff in the sum of $7,800. Defendant appeals from an order of the district court denying his motion for a new trial.
On appeal it is defendant's position that the trial court committed reversible error (1) by directing a verdict in favor of plaintiff, (2) by admitting in evidence certain medical testimony and a medical report prepared for plaintiff's attorneys, (3) by permitting plaintiff's counsel to make what is claimed were improper and prejudicial comments in his closing argument, and (4) by instructing the jury that plaintiff might recover for impairment of her future earning capacity. We shall consider these issues in their order.
1. Not every case presents a conflict in the facts which must be resolved by a jury. In the instant case the facts are undisputed and, in fact, defendant presented no evidence at all on the issue of liability. He argues instead that solely by virtue of plaintiff's failure to signal that she was slowing down, she could have been contributorily negligent and that this was an issue for the jury. We cannot agree. Even when the evidence is viewed in the light most favorable to him, it is clear that the negligence here was all on the part of defendant. By following so closely behind plaintiff's car he was clearly in violation of the statute. In so doing he was prima facie negligent. 2 It also appears that the negligence was the proximate cause of the accident, and no evidence to the contrary having been introduced, the directed verdict was entirely proper. 3 Plaintiff's conduct in the operation of her vehicle was in accord with the rules of the road. In anticipation of the impending turn she had begun signaling 150 feet from the intersection. 4 She also decreased her speed and then stopped to yield the right-of-way to the oncoming vehicle as she was required to do. 5 These actions should have given defendant sufficient notice of plaintiff's intention and if his vehicle had ben under proper control he would have had no trouble in avoiding this accident.
2. Three objections are raised to the medical evidence in this case. The first relates to allowing Dr. Kenneth G. Henry, plaintiff's personal physician, to state an opinion based on his knowledge of this case; the second objection is that he was allowed to testify that he did not change his opinion after he received a report about plaintiff from an orthopedic surgeon; and the final objection relates to the admission in evidence of a medical report letter prepared for plaintiff's attorneys.
There was no error in permitting Dr. Henry to give his opinion. '(Q)uestions calling for the opinion of an expert witness must be based upon facts previously testified to by him, or facts testified to by others, or upon an agreed state of facts, or facts assumed hypothetically as true.' 6 In the instant case plaintiff's attorney chose the first method; namely, to obtain an opinion based upon the doctor's own personal knowledge and observations gained during the course of his treatments and examinations. The record supports this approach. Dr. Henry had attended plaintiff over a period of years. He treated her for the injuries out of which this action arose; in fact, he saw her in the hospital within 15 to 20 minutes after the accident. He continued to see her and examined her again shortly before the trial. He testified that there were, to his knowledge, no intervening factors which could have affected her condition. His opinion was entirely proper.
Nor do we think it was reversible error to permit Dr. Henry to testify that he did not alter his opinion after receiving the report of the orthopedic surgeon. In Riley v. Luedloff, 253 Minn. 447, 92 N.W.2d 806, we recognized that opinions based on information obtained out of court from third parties other than the patient are hearsay and inadmissible, but that no prejudicial error results from their admission when they pertain to facts which are also corroborated by other competent testimony. In the instant case, in view of the independent testimony both by plaintiff and Dr. Henry, permitting him to testify that he did not alter his opinion after receiving the surgeon's report was not prejudicial.
The medical report letter to plaintiff's attorneys was first used by defense counsel in cross-examining Dr. Henry. On redirect examination plaintiff's counsel attempted to show that opposing counsel had used a portion of the letter out of context and sought to introduce the entire letter, not to corroborate any prior testimony of the doctor, but to clarify exactly what he had written. The best evidence of what the letter contained was the letter itself and to that end it was admissible. 7
3. We find no merit in the claim that plaintiff's counsel made improper and prejudicial comments in his closing argument. Granting a new trial for misconduct of counsel rests almost wholly in the discretion of the trial court which is in a better position to assess its impact upon the jury. 8 It is only when there has been a clear abuse of discretion that we will reverse on appeal. To do otherwise would penalize a party for his counsel's misconduct and we have consistently refrained from so doing. 9 Two instances of misconduct are set forth, one a statement by plaintiff's counsel that had the orthopedic surgeon been called to testify his testimony would not have affected the case, 10 and the other a comment by plaintiff's counsel about evidence which had been properly excluded and which counsel for defendant claims was made in an attempt to place the defense in a bad light. 11 The amount of the verdict indicates that it was not rendered under the influence of passion and prejudice and, while these statements were improper, we do not think the trial court abused its discretion in not granting a new trial.
4. The last assignment of error relates to the trial court's instruction to the jury that it might include as an element of plaintiff's damages the loss of or impairment to her future earning capacity. Defendant's position is that under this court's recent opinion in Person v. Sears, Roebuck & Co., 252 Minn. 110, 89 N.W.2d 694, it was error to submit this issue to the jury when there was no evidence in the record of the value of plaintiff's earning capacity. The opinion in the Person case was by a divided court. Although the opinion is a fairly recent one, it has already been the subject of criticism, not only on the part of lawyers, 12 but also in law review articles. 13 Accordingly, we have decided to reexamine the soundness of that opinion.
In Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 489, 319 P.2d 343, 346, the court said:
'Loss of earning power is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money.'
The preceding statement clearly represents the general rule of law which applies in other jurisdictions 14 and was...
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