Dziuk v. Loehrer

123 N.W.2d 86, 266 Minn. 153, 1963 Minn. LEXIS 719
CourtSupreme Court of Minnesota
DecidedJuly 26, 1963
Docket38,807
StatusPublished
Cited by7 cases

This text of 123 N.W.2d 86 (Dziuk v. Loehrer) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dziuk v. Loehrer, 123 N.W.2d 86, 266 Minn. 153, 1963 Minn. LEXIS 719 (Mich. 1963).

Opinion

Sheran, Justice.

The appeal is by three personal injury claimants from a judgment of the district court entered in their favor following additur as specified in a conditional order denying a new trial on the issue of damages only.

Actions were instituted by Thadeous Dziuk, Elaine Dziuk, his wife, and their two children, Terri Ann Dziuk, 7, and Vicki Lee Dziuk, 6, for personal injuries allegedly sustained as a result of an automobile accident which occurred on December 18, 1960, at the intersection of 8th Avenue Southeast and 10th Street in the city of St. Cloud. At the *155 conclusion of the trial, special interrogatories were submitted to the jury, which found that the accident was proximately caused by the negligence of David Loehrer; that plaintiff Thadeous Dziuk was also negligent but that his negligence was not a proximate cause of the accident. The amount of general damages sustained by Thadeous Dziuk, Elaine Dziuk, and Vicki Lee Dziuk was fixed at “none,” and the general damage sustained by Terri Ann Dziuk was fixed at $200. The jury found that Thadeous Dziuk sustained no wage loss and that Elaine Dziuk sustained a wage loss in the amount of $125.40. The reasonable medical expense incurred by all of the plaintiffs was set at $600.

A motion was made in behalf of each of the plaintiffs for an order setting aside the verdict in respect to damages and granting each plaintiff a new trial on that issue. The trial court, after reciting the answers to the special interrogatories, found as facts:

“1. That plaintiff Thadeous Dziuk did sustain general damages in the just and reasonable amount of $500.
“2. That plaintiff Elaine Dziuk did sustain general damages in the just and reasonable amount of $250, although her testimony was impeached to some extent.”

Plaintiffs’ motion was “granted unless defendants within thirty (30) days from the date hereof by written acceptance filed with the clerk of this court agree to an additur of $500.00 general damages to Thadeous Dziuk and $250.00 general damages to Elaine Dziuk.” The condition was accepted by defendant and judgment was entered in favor of plaintiffs in the amounts specified. '

The legal issues as stated by plaintiffs are as follows:

(1) “Was the jury award of damages for Terri Ann Dziuk adequate?”
(2) “Were the awards of damages for Elaine Dziuk and Thadeous Dziuk adequate after additur?”
(3) “Can the jury and trial court disregard unimpeached and un-contradicted testimony on damages that is not inherently improbable?”
(4) “Were the special verdicts on damages so perverse, inadequate or contrary to the evidence as to require a new trial to the exclusion of additur?”
*156 (5) “In a personal injury action involving multiple plaintiffs, can an order granting a new trial to one plaintiff be conditioned on additur ordered for other plaintiffs?”

Evaluation of the awards of damage both before and after additur makes necessary a review of the evidence concerning this phase of the cases. For convenience, the evidence with respect to each claim will be considered separately.

Terri Ann Dziuk.

Terri Ann’s parents testified that she was unconscious at the accident scene. She was removed by ambulance personnel, who were not called to testify. Dr. Robert T. Peterson examined her at the hospital and noted that “she had a three-inch long scalp laceration on her right posterior scalp area, and that she was upset, answered questions vaguely.” She was hospitalized until December 21, 1960. The hospital record was not offered in evidence and we have no- disinterested testimony as to her progress there. She returned' to school after the Christmas vacation and experienced headaches on several occasions. Dr. Peterson saw her on December 27, on January 3, 1961, and on January 10, when “she seemed to be doing quite well.” He observed Terri Ann again on February 13, 1961, and at that time “she was complaining of some visual difficulties.” He said, “I think she had some little double vision with spots in front of her eyes, and so on.” She was referred to an eye specialist by Dr. Peterson. No testimony from such specialist was offered and we do not know whether this recommendation was followed. Upon cross-examination Dr. Peterson characterized the injury of Terri Ann as “a mild concussion.”

Terri Ann Dziuk testified that her first recollection after the accident was when she “woke up in the hospital.” When asked with respect to her eyes, she said, “I just couldn’t focus my eyes just a little bit, but nothing else. I didn’t see double or anything — nothing real bad.” Following the accident she experienced headaches.

Dr. Harold H. Noran of the Minneapolis Clinic of Psychiatry and Neurology, called by plaintiff, testified that he had examined Terri Ann on June 30, September 1, and November 27, 1961. Neurological examination was negative. An electroencephalogram reading was made from *157 which he concluded that she had “a cerebral disrhythm or abnormal electro-encephalogram.” He said, “[T]his child is normal neurologically but she has what would be termed a cerebral disrhythm or abnormal electro-encephalogram. That is as far as I could go.” He testified, “Right now in my opinion she is clinically well and isn’t having any trouble now.” Upon cross-examination Dr. Noran conceded that in some cases an abnormal electroencephalogram reading of the type here involved might be found in a patient who had not sustained a head injury. He also agreed that electroencephalogram readings made over a period of time following a head injury usually tend to show a diminishing degree of abnormality in cases where trauma is the cause of the observed dis-rhythm. He stated this opinion:

“Q. You think with a reasonable degree of certainty that she is going to be all right?
“A. Yes, sir.”

While reference was made to “traumatic convulsive seizures” as a future possibility, the trial court instructed the jury:

“Dr. Noran testified relative to Terri Ann Dziuk’s condition and gave certain testimony relative to the future or permanent injuries, all of which was a guess, according to his testimony. Therefore, you are to disregard that part of his testimony because it can’t be of any assistance to you.”

No exception was made to the part of the charge that related to the testimony of Dr. Noran above quoted.

The jury found that Terri Ann Dziuk sustained general damages in the amount of $200. This allowance was extremely modest. The trial judge, however, has had opportunity to view the situation personally. He apparently concluded that the amount awarded represented fair compensation for the injuries received; otherwise, the special verdict on this issue would not have been accepted without additur. We cannot say his determination represents an abuse of discretion.

(a) Thadeous Dziuk.

Immediately after the impact Thadeous Dziuk was unaware of having sustained any injury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Erickson ex rel. Erickson v. Hammermeister
458 N.W.2d 172 (Court of Appeals of Minnesota, 1990)
ERICKSON BY ERICKSON v. Hammermeister
458 N.W.2d 172 (Court of Appeals of Minnesota, 1990)
Bebeau v. Mart
310 N.W.2d 465 (Supreme Court of Minnesota, 1981)
Stahlberg v. Moe
166 N.W.2d 340 (Supreme Court of Minnesota, 1969)
Walser v. Vinge
146 N.W.2d 537 (Supreme Court of Minnesota, 1966)
Backman v. Fitch
137 N.W.2d 574 (Supreme Court of Minnesota, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
123 N.W.2d 86, 266 Minn. 153, 1963 Minn. LEXIS 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dziuk-v-loehrer-minn-1963.