Larson v. Russell

176 N.W. 998, 45 N.D. 33, 1919 N.D. LEXIS 243

• Court: North Dakota Supreme Court
• Decided: December 11, 1919
• Status: Published

Opinions

Birdzell, J.

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the falling of a portion of the wall of a building owned by the defendant. It appears that on February 3, 1915, the plaintiff was working in the capacity of a domestic servant, in the rooming house occupying a building known as the Ely Block and Annex on Broadway in the city of Fargo. The portion of the building which was used as a rooming house had been leased to her brother-in-law, one Papas or Papamanoles, and the lease assigned by the latter to Emma Larson, the mother of the plaintiff. On the date mentioned, while the plaintiff was thus employed, she had occasion to go down the steps of a stairs on the outside at the rear of the building, and while making the descent a section of the veneered brick wall fell out, some of the bricks striking the plaintiff and inflicting injuries upon her. The case was tried in the district court of Cass county in January, 1918, and a verdict rendered in favor of the plaintiff for $26,000. The defendant later moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. This appeal is from the order of the trial court denying a new trial and from the judgment entered on the verdict. Upon this appeal the appellant has made ninety-four assignments of error.

¡ It will be unnecessary to consider all of the assignments, but such of them will be referred to as appear to have most merit.

It is first contended that the verdict is so excessive as to indicate that it was rendered under the influence of passion or prejudice, thus necessitating a new trial. Comp. Laws 1913, § 7660. The argument in- support of this contention concerns itself with two main propositions : (1) That the evidence is insufficient to establish that the plaintiff suffered a permanent injury; and (2) assuming such permanent injury to have been established, the plaintiff had not sufficient earning capacity to warrant a verdict for the sum given. The proper weighing of this contention has involved a painstaking examination of the record by every member of this court, and has led to the formation of different conclusions therefrom. A statement of the facts which the record discloses, bearing upon the physical condition of the plaintiff, according to the views of the majority of the court, shows that a question of fact was presented for the consideration of the jury and that their verdict in response to it is one that finds substantial support in the evidence.

At the time the plaintiff received the injury she was twenty-two years of age. She enjoyed good health and was receiving for the work that she had been doing $25 per month and her room and board. On the day of the accident the plaintiff’s brother found her lying at the bottom of the stairway at the rear of the building in an unconscious condition with the bricks from the fallen wall lying upon and about her. She was carried to a room in the building bleeding at the mouth and nose and upon her back there was a bruised area over the spinal column and about the shoulder blades. A doctor was at once called to attend her and up to the day of the trial she had been constantly under the care of this physician. Between the date of the injury and the date of the trial, a period of approximately three years, the plaintiff had been bedfast and in a paralyzed condition which her doctor.described as traumatic neurosis. This disease is attributed to the injury in question and the diagnosis of its presence is positive. The defendant, on the other hand, and experts testifying on her behalf, contend that the plaintiff is afflicted with hysteria; that she has no traumatic neurosis and no motor paralysis; that she would be able to move about-in a normal way if she willed to do so.

The condition of the plaintiff was presented to the jury by the testimony of six doctors who had observed her, by a nurse, her relatives who had attended her, and by herself, she being present during the trial and giving testimony from a cot upon which she was carried back and forth. The physician who saw her first was Dr. J. W. Vidal, a homeopathic physician who had been graduated from the University of Michigan and who had had thirty-four years of experience. At the time he first saw her, which was about noon on the day of the accident, he says that she apparently could not move any part of her body, and that she apparently did not understand anything he said to her; that she was perfectly placid and couldn’t move; that from the date of the accident to the date of the trial he had visited her about two hundred and fifty times; that he was assisted in the treatment by Mrs. Nelson, a nurse, who had applied hot packs to the spine and massaged her with the hand and a vibrator, followed by alcohol rubs and the use of a chemical light known as “lucredescent” light. In treating her he had observed her inability to move her body to the extent that if, in turning her, her face should be turned directly on to the pillow, she would smother, as she couldn’t move from that position to enable her to breathe. But notwithstanding the motor paralysis described by Dr. Vidal, he also testified that, according to his observations, the plaintiff suffered great pain when various portions of her body were touched, as, for instance, when soliciting the patella reflex or in moving the head. He testified that in his opinion the patient was suffering from what he termed spinal neurosis, and that she was permanently injured. The peculiarity of her condition is that the posterior motor nerves are paralyzed, while the sensory nerves are not paralyzed but are exaggerated.

Dr. Francis Peak, a homeopathic physician of thirteen years’ experience, testified in detail concerning the examination he made of the patient, and not only confirmed the diagnosis given by Dr. Vidal, but gave a scientific explanation of the possibility of there being a paralysis of the- motor nerves without accompanying paralysis of the sensory nerves.

Dr. Olaf Hagen, of Moorhead, Minnesota, a graduate of the University of Minnesota and a practitioner of eleven years’ experience, also testified confirming the diagnosis.

Three doctors called by the defendant testified as experts. - They were Drs. McGregor, Sorkness, and Wheeler. These men- likewise possessed the usual qualifications, and they testified as to their observations from personal examination of the plaintiff, as well as in response to hypothetical questions. The principal point of difference between the opinions of the experts testifying at the instance of the defendant and those testifying for the plaintiff is as to the possibility of there being a condition of paralysis affecting the motor nerves which does not at the same time affect the sensory nerves. Dr. McGregor, for instance, testified that as a general proposition a paralyzed individual cannot experience pain, and that he didn’t think that a woman suffering from paralysis as a result of a traumatic injury could be so paralyzed as to lack power of locomotion and yet suffer more or less pain. This opinion is based upon tbe fact that tbe nerve fibers in tbe spinal column are so intermingled that it would be impossible for traumatism to injure the motor nerves without likewise injuring the sensory nerves, and he therefore did not consider it possible for an individual to suffer the pain that the plaintiff claims to have suffered if she was paralyzed to the extent of being unable to move. Other conditions testified to by this witness, upon which he based his opinion that the plaintiff was not paralyzed, were that the patella reflexes were exaggerated, that the muscles of the body had not atrophied, that there were no bed sores on the body, and that the plaintiff’s body was apparently well nourished. He also testified that even if a condition existed in which the motor nerves were affected, and not the sensory nerves, it could not exist for any length of time, for either the nerves that were injured would be repaired, or those that were so injured that they could not become normal again would be so completely paralyzed that there would be no sensation, pain, or motion. Dr. Sorkness expressed opinions similar to those of Dr. McGregor, as did also Dr. Wheeler. These doctors agree in the opinion that there is no paralysis of either the motor or the sensory nerves. Dr. Wheeler, however, said that it was possible to have paralysis and .pain at the same time. These doctors account for the then condition of the plaintiff as being due to hysteria, neurosis, or self-suggestion, and they regard her contribution to her own condition as being a certain extent unconscious. It is their opinion that such injuries as she sustained were of a temporary character.

Upon this testimony this court is asked to set aside the verdict of the jury on the ground that it lacks the requisite support to justify a finding of permanent injury and damages based thereon. The record impresses us, as the testimony might have impressed the jury, with a degree of uncertainty as to the true condition of the plaintiff, but we are not warranted in disturbing the verdict of the jury on the ground that there is some uncertainty as to the character of the injury. The extent of the injury is a question of fact, and, like other questions of fact, is to be determined by the jury, and not by the court. It¡ is only when the evidence is of such a character that reasonable minds can draw but one conclusion therefrom that the court is justified in pronouncing the conclusion. If the jury believed the witnesses for the plaintiff and if they were so impressed by her demeanor during the trial as to believe that she was in fact injured as claimed, we cannot say on this record that such is impossible or that the jury should have found otherwise. There being ample evidence upon which to base the verdict, in so far as the verdict may involve a finding of permanent injury, it cannot be disturbed by this court upon appeal. The responsibility for this verdict, under our existing jurisprudence, clearly rests upon the jury and, under our procedure, where no error has been committed warranting a reversal, we know of no method according to which a case of this character may be so tried as to shift the responsibility for the determination of the difficult questions of fact from the shoulders of the jury to those of the judge. The testimony amounts to legal evidence and has apparently been sufficient to carry conviction to the mind of the jury. There is no rule of law that requires testimony in cases of this character to do more than this. Furthermore, the trial judge had the same opportunity to observe the witnesses and to weigh their testimony that the jury had and he was evidently so far impressed with the testimony as a whole to feel justified in exercising his discretion in favor of the plaintiff upon the motion for a new trial.

The peculiarity of this case is only that the facts are difficult to determine. But mere difficulty in determining facts does not give rise to any different procedure or call for the application of any different legal principles than such as apply ordinarily. This is not a case such as Johnson v. Great Northern R. Co. 107 Minn. 285, 119 N. W. 1061, where the plaintiff’s witnesses acknowledged that they were not experts on nervous conditions, and where the defendant produced experts who were capable of giving and who did give complete scientific explanations of the plaintiff’s symptoms, which could lead only to the conclusion that there was no appreciable injury to the nervous system. On the contrary, it is a case where, so far as the record discloses, the experts testifying for both the respective parties were equally qualified to express opinions concerning the plaintiff’s condition. Thus, while in view of the possibilities of simulation, policy might dictate a close scrutiny of testimony going to establish permanent nervous disorders, we cannot lose sight of the fact that the law does not purport to determine questions peculiar to physiological science. Neither it is possible to lay down rules according to which injustices due to verdicts of juries on questions of fact can be obviated in all cases. Yordicts which by subsequent demonstration may be found to be unjust may nevertheless be of unquestionable legal validity. This may work to the disadvantage of either party, for wrongs are perhaps as likely to result from the denial by juries of substantial damages for real injuries as from awards for injuries which prove to be less serious than anticipated. If, for instance, the jury in the- instant case had credited the testimony of the experts who testified for the defendant and had rendered its verdict accordingly, there can be no doubt that the plaintiff would not have been entitled to another trial. And her right would be no different, though she should remain for life a helpless paralytic. With the development of medical science it may become possible to set up more satisfactory standards for the diagnosis of nervous disorders, and this may in turn result in preventing imposition upon courts and juries such as occasionally occur; but in the light of present standards and on the record before us the majority of this court is of the opinion that it is not warranted in saying that the jury was imposed upon in the instant case.

We have examined the authorities relied upon by the appellants, in which verdicts for substantial damages were set aside on the ground that the evidence did not show to the requisite degree of certainty that the injuries were permanent. But these authorities are not applicable-in the instant case, for if the plaintiff’s condition has been properly diagnosed by the experts who testified on her behalf, there can be little doubt of the permanency of the injuries. Such doubt as there is on this point arises from the disagreement of the experts concerning the character of the injury itself, rather than its effects, provided the diagnosis is correct. The witnesses for the plaintiff testify that there is a lesion of the spinal cord or a condition of traumatic neurosis. Those for the defendant say that, in their opinion, such a condition does not exist. For this court to say, then, that the plaintiff has not sustained the burden of proof as to the permanency of her injuries would involve the usurpation of the functions of the jury in weighing testimony upon a disputed fact relating to an existing condition. Dickinson v. McBride, 127 Ark. 555, 193 S. W. 89; St. Louis & S. W. R. Co. v. Hemmert, 118 Ark. 601, 174 S. W. 222; Callicotte v. Chicago, R. I. & P. R. Co. 274 Mo. 689, 204 S. W. 529.

It has been suggested that such damages as were allowed in the instant case to compensate for permanent injuries are not sufficiently certain within the rule laid down in § 7141, Comp. Laws 1913. This section reads: “Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof, or certain to result in the future.” The contention is that prospective damages recoverable can only be such as are in reality certain to result and not merely such as may be likely to result in the future. In York v. General Utilities Corp. 41 N. D. 137, 170 N. W. 312, this court reversed a judgment for error in instructions, where the trial court had instructed the jury that in estimating damages they might consider the “likelihood” of the injuries being permanent and the pain the plaintiff had suffered or “may be likely to suffer in the future.” This instruction was regarded as too favorable for the plaintiff, particularly in view of the fact that the court refused the defendant’s request to so limit the comparative terms “likelihood” and “likely” as to make clear to the jury that speculation and conjecture were not to be indulged in. We are of the opinion that the word “certain” appearing in the statute is not used in the absolute sense. It relates to the future, and therefore cannot be construed as only embracing those consequences or elements of damages which are absolutely certain to follow a given injury, for future happenings are necessarily somewhat uncertain. The section had its origin in the original Field Code, § 1467, Draft of Civil Code for the State of New York (1862) and the commissioners contented themselves with citations to Sedgwick on Damages, 104, and Wilcox v. Plummer, 4 Pet. 172, 182, 7 L. ed. 821, 824. Reference to these authorities discloses that the rule of damages codified by the section in question is the rule according to which all damages for a given injury must be recovered in one suit, which requires, according to the rule stated by Sedgwick, § 86, that the recovery shall embrace not only compensation for loss already sustained “but also for such loss as he (the plaintiff) can with reasonable certainty show will accrue in future.” Sedgwick further points out that a contrary rule had formerly existed in England under which damages were allowed only to the time of the commencement of the action. Comyns’s Dig. Damages, D; Pilfold’s Case, 10 Coke, 115b, 77 Eng. Reprint, 1102. The clear purpose of the statute, then, was to alter this rule, and enable a plaintiff to recover damages which are reasonably certain to accrue in the future. If more were required than reasonable certainty it can readily be seen that all recovery of prospective damages would be precluded in actions for personal injuries where the injuries have resulted in nervous disorder. Nor, under the present state of medical science, even the most learned and highly specialized experts do not venture to say that they •can assuredly foretell the probability of recovery. The adjudicated cases, fully sustain the proposition that recovery may be had as for permanent injury in cases of traumatic neurosis, even- though there may be some likelihood of recovery. St. Louis & S. W. R. Co. v. Hemmert, 118 Ark. 601, 174 S. W. 222; Louisville & S. R. Co. v. Minogue, 90 Ky. 369, 29 Am. St. Rep. 378, 14 S. W. 357; Dickinson v. McBride, supra; Callucotte v. Chicago, R. I. & P. R. Co. supra.

In fact, the rule’ seems to be well established that courts are somewhat more reluctant in cases of this character to disturb the verdicts of juries than in cases where they can more readily weigh and determine the elements having a legitimate bearing in estimating damages.

Says Cyc. (13 Cyc. 129-132):

“In cases of paralysis or injury to the nervous system a verdict will rarely be considered excessive. So in injuries to the spine that have resulted from a personal injury, the court is little inclined to interfere with a verdict on the ground that it is excessive.

“Where it appears from the evidence that the injury complained of has proved or is liable to prove permanent, the appellate courts are little inclined to interfere on the ground of excessive damages. Indeed the courts have gone so far as to refuse interference on the ground of excessive damages not only where there is a probability of permanent injury, but where the evidence shows that a possibility exists. Even where the evidence is conflicting as to the permanency of the injury or where the recovery is doubtful the courts will not set aside a verdict of excessive.” See also 17 C. J. 1087, § 397.

Under the evidence in this ease pain and suffering, both past and prospective, were also proper elements of damage. 8 R. C. L. 544. Without expressing an opinion as to the degree of certainty of permanent injuries required to support a verdict, we are of the opinion that there is substantial evidence in this case to support the verdict of the jury in its entirety and that the case falls well within the principles supported by the authorities above referred to.

As to the contention that the verdict is excessive, viewed from the standpoint of compensation for pain and suffering, and for the loss of earning capacity upon the supposition that permanent injury has. been sustained, we think little need be said. At the time this case was tried the plaintiff had undergone approximately three years of pain and suffering; had' incurred considerable expense in connection with her care, and there was a strong probability that her condition would remain practically the same for the remainder of her life. She would not only be unable to earn a livelihood, but she would require the services of others to minister to her wants.. This contention is therefore regarded as being without merit.

The appellant also contends that in any event no actionable negligence has been shown, and in this connection reliance is had upon the general doctrine that a landlord is not liable to those who sustain injuries caused by defects in leased premises. The provisions of the lease are pleaded. According to the lease, the lessee was to perform all labor necessary to do the carpenter work, painting, paperhanging, etc., and the lessor was to furnish the materials. In case of the failure of the lessor to furnish the materials, consisting of lumber, wallpaper, paint and glass, and other materials necessary to place the building in a first class and sanitary condition, the lessee was authorized to procure the same at the expense of the lessor. It does not appear that repairs of the character required to render the exterior veneered brick wall safe were contemplated by the parties to the lease nor embraced within their contract, but on the eontraxy it rather appears that the lessor assumed any obligation there might be with respect to such repairs; for it was expressly agreed that any repairs that might be required on the roof should be done by her.

The rule for which the appellant contends, according to which the landlord is held not liable to employees of the tenaxxt, is generally applied in instances where the injury was occasioned by a defect in the premises which, as between the landlord and the tenant, the landlord was not bound to repair. It is, of course, competent for a landlord and a tenant to contract for the rental of premises in their existing condition and for the tenant to assume the burden of rendering them safe and habitable. Under such an arrangement those who may come upon the premises during the lease would be there at the tenant’s invitation, so that any resulting injury would be attributable to his fault and would not involve any breach of duty owing by the landlord. Daley v. Towne, 127 Minn. 231, 149 N. W. 368; Bailey v. Kelly, 93 Kan. 723, L.R.A.1916D, 1220, 145 Pac. 556. That is not .so in this case, however, as the tenant did not assume an obligation to make the repairs in question, and the defendant leased the premises knowing full well that their use would require the presence of persons who would have occasion to use the rear stairway as the plaintiff in this case was using it, and who would thereby be subject to the hazard of the defective condition of the veneered wall. It appears as a fact that the wall in question had been condemned by the city authorities as unsafe, and that the defendant had full knowledge thereof. But it is not shown that the plaintiff knew of the defective condition, nor can we assume that the condition was so obvious that it must have been known to one having no particular occasion to observe it and no skill in detecting such defects. See Russell v. Fargo, 28 N. D. 300, 148 N. W. 610; note in 50 L.R.A.(N.S.) 286.

It is also argued that the defendant was prejudiced by being denied the right to impeach the plaintiff, her mother, her sister and her brother. To impeach these witnesses, defendant’s counsel sought to show upon the cross-examination of the plaintiffs brother that the plaintiff, her mother and her sister gave certain testimony in a bankruptcy proceeding in the Federal court, pursuant to a voluntary petition of the plaintiff’s brother-in-law, Papamanoles, and in a trustee’s action set aside certain conveyances and mortgages executed by the bankrupt, which testimony was so incredible that it was not believed by the Federal judge who found as a fact that the parties referred to had committed perjury. The discredited testimony was designed to establish the bona tides of the transaction attacked by showing that the plaintiff’s mother had accumulated several thousand dollars in currency which she kept in a box hidden in the cellar of her residence in Minnesota, and that this represented earnings of her sons, including the witness, which had been sent to her from time to time. In the offer it was stated that this case was begun shortly after the rendition of the adverse decree in the bankruptcy and trustee proceedings and the offer was made with reference to each witness and for the purpose of affecting the credibility of the plaintiff and her family.

This evidence was objected to on every ground that could affect its admissibility. Conceding that this case is one in which the broadest latitude should be given in the cross-examination of plaintiff’s witnesses, we cannot view the exclusion of the evidence referred to as involving-reversible error. In this jurisdiction the most liberal rules obtain for testing the credibility of witnesses on cross-examination. Territory v. O’Hare, 1 N. D. 30, 44 N. W. 1003; State v. Kent (State v. Pancoast) 5 N. D. 516, 35 L.R.A. 518, 67 N. W. 1052; State v. Malmberg, 14 N. D. 523, 105 N. W. 614. It is even held, as will be seen in State v. Malmberg, supra, that facts which affect the credibility of a witness’ testimony in the specific case, as distinguished from facts affecting credibility generally, may be shown by independent evidence. It is also true that, generally, greater latitude should be permitted in testing credibility on cross-examination than in allowing independent evidence for this purpose (see 2 Wigmore, Evidence, § 954), and that the range of cross-examination is largely within the discretion of the trial court. Inquiry, however, as to specific acts indicating corruption should not be indulged in unless the facts inquired for have a direct bearing upon the credibility of the witness for the case in hand. As was held, for instance, in South Bend v. Hardy, 98 Ind. 577, 49 Am. Rep. 792, the plaintiff, who had testified in support of his own claim for personal injuries against a city, could not be cross-examined upon a prior attempt to defraud an insurance company by causing a false death claim to be presented; and in Elliott v. Boyles, 31 Pa. 65, that a witness could not be asked in cross-examination whether on another trial he had committed perjury. See also, Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311; Penny v. Rochester R. Co. 7 App. Div. 595, 40 N. Y. Supp. 172, 178; Com. v. Mason, 105 Mass. 163, 7 Am. Rep. 507; 5 Jones. Ev. § 832. But where the evidence tends directly to affect the credibility of the witness in the particular cause it would be error to exclude it. See Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918, where it was held error to exclude evidence tending to impeach a witness by showing that he had been an active agent in corrupting a judge on a former trial of the same case. In Beck v. Hood, 185 Pa. 32, 39 Atl. 842, where it was held proper to impeach credibility on cross-examination by showing that on a former trial of the same case the witness sought to affect the verdict by making statements to a juror out of court. In the instant case the questions were not so framed as to admit of answers affecting credibility generally and we are of the opinion that the connection between the supposed corruption involved in the bankruptcy proceedings and that in the instant case is not sufficiently apparent to warrant us in holding that the limitation of the cross-examination in the manner indicated was an abuse of discretion amounting to error.

Error is also predicated upon a ruling of the trial court sustaining an objection to the following question asked Dr. Vidal upon cross-examination: “Has it been your experience, Doctor, in many of these cases, that if there was a verdict for the plaintiff, the party recovered and would walk ?” While, in our opinion, it was proper to thus seek to test the value of the doctor’s opinion, we do not regard the error as being at all serious, for the reason that ample opportunity seems to have been afforded for cross-examining the doctor as an expert and the jury was as fully enlightened upon the characteristics of neurosis as the combined evidence of the six doctors could make them.

Every feature of this case has received the most careful attention of the court, those features upon which we have entertained any doubt having been reargued at the direction of the court. We fully appreciate the possibility of injustice being done in cases of this character, but after the most painstaking consideration it appears to the majority of the court that a fair trial has been had, and a record made which presents no error warranting a reversal.

The judgment and order appealed from are affirmed.

Christianson, Oh. J., concurs. Grace, J. I concur in the result.