Schaub v. Job

335 N.W.2d 568, 1983 S.D. LEXIS 351
CourtSouth Dakota Supreme Court
DecidedJune 22, 1983
Docket13829
StatusPublished
Cited by9 cases

This text of 335 N.W.2d 568 (Schaub v. Job) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schaub v. Job, 335 N.W.2d 568, 1983 S.D. LEXIS 351 (S.D. 1983).

Opinions

[569]*569WUEST, Circuit Judge.

This is an appeal from a judgment denying appellants any recovery on their claims for personal injury and property damage and from an order imposing terms as a condition of a continuance. We affirm the judgment, reverse the order, and remand the case for further proceedings with respect to the issue of terms.

On December 23, 1978, appellants Marjorie A. Schaub, her husband, Francis Schaub, her two minor sons, Daniel and Paul, and her.mother, Josephine M. Kean, were traveling in an easterly direction on Sixth Avenue in the City of Aberdeen. Mrs. Schaub was driving a 1970 Pontiac which was owned by her. Her husband was seated next to her in the front seat and her mother was seated to his right. The two minor sons were in the back seat. Sixth Avenue at that time was a four-lane highway with two lanes running in either direction. The vehicle being operated by Mrs. Schaub was in the lane next to the center line. She stopped her automobile for the traffic in front of her, and while she was stopped her auto was struck from the rear by a vehicle operated by appellee, Mary Lu Job. Appel-lee had been traveling behind the Schaub vehicle when she noticed it had stopped for traffic. She attempted to turn into the right lane and pass appellants, but was unable to do so because of the traffic, and thereby struck the right rear bumper of the Schaub vehicle. At the time of impact her speed was between five and ten miles per hour. Investigating Officer Gary Myhre put down $25 as his best estimate of damage on the official report for each vehicle after first putting no damages for appellants’ vehicle.

On March 5, 1980, Mrs. Schaub, her husband, mother, and two minor sons commenced five separate actions against the appellee, claiming damages as a result of the accident. These actions were consolidated for trial, which was held on March 11 and 12, 1982. The trial judge directed a verdict against appellee on the issue of negligence, but submitted the issues of personal injuries and damage to the automobile, and the proximate cause thereof for determination by the jury, which returned a verdict of no damages. The court denied a motion for a new trial. All five plaintiffs appeal.

Two issues have been presented for our determination:

1. SHOULD THE TRIAL COURT HAVE GRANTED THE MOTION FOR NEW TRIAL ON THE BASIS THAT THE VERDICT OF THE JURY WAS INADEQUATE AND AWARDED UNDER THE INFLUENCE OF PASSION AND PREJUDICE?
2. SHOULD THE TRIAL COURT HAVE AWARDED TERMS TO THE DEFENDANT OF $2,000 AS A CONDITION OF GRANTING A CONTINUANCE?

In regard to the new trial issue, appellants argue that the jury disregarded the court’s instructions and the evidence of the nature and extent of the injuries involved, or in the alternative, that the jury was influenced by passion or prejudice because counsel was permitted to inquire into other lawsuits in which the Schaubs were engaged. Appellee counters by asserting there was a conflict in the testimony as to whether or not any damages were sustained and that the inquiry into other lawsuits was proper to determine credibility of the appellants who testified in support of their claims.

It has been the law in this state for many years that a motion for a new trial upon a question of fact is addressed to the sound discretion of the trial court, and the granting or the refusing of such new trial will not be disturbed unless it appears affirmatively from the record that there has been an abuse of discretion. Basin Electric Power Coop. v. Gosch, 90 S.D. 222, 240 N.W.2d 96 (1975). Therefore, the record must be examined viewing it most favorably to the verdict when a new trial is denied. Ford v. Policky, 81 S.D. 361, 135 N.W.2d 473 (1965), citing Jensen v. Miller, 80 S.D. 384, 124 N.W.2d 394 (1963). Basin Electric, supra.

[570]*570AUTOMOBILE DAMAGE

The vehicle was owned by appellant Marjorie Schaub. She testified that the difference in the value before the accident and after the accident was $800. An estimate for repair of the vehicle was $816.07. Officer Myhre at the scene of the accident estimated the damage on his official report at $25. The undisputed testimony of appellee establishes that she was traveling from five to ten miles per hour when she struck the rear bumper. Both appellee and her adult passenger testified that they did not see any damage to the Schaub vehicle. The vehicle was driven away from the accident, used every day, and no estimate obtained until nine months later on September 21, 1979. Another lawsuit was brought for damages to the same vehicle arising out of another incident, and a later estimate obtained in connection with that claim showed damage to the right door, an area also claimed by appellants to be damaged in the instant accident which was not disclosed on the September 21, 1979 estimate. Ap-pellee described the collision as a slight bump, which resulted in no damage to her vehicle except for leaving a mark on her bumper. Her adult passenger testified that it was “just like bumper to bumper, a bump.” Mrs. Schaub claimed damage to the rear bumper. However, appellee presented a picture of the bumper in evidence and requested Mrs. Schaub to place an “X” on the bumper where she claimed a dent. She placed an “X” on the bumper. If there is a dent on the bumper, it does not appear in the picture. In viewing the testimony favorable to the verdict, we conclude the jury could have found ,no damage to the automobile. The jury had the duty to resolve this conflicting testimony. Kamp Dakota, Inc. v. Salem Lumber Co., Inc., 89 S.D. 696, 237 N.W.2d 180 (1975).

PERSONAL INJURIES

All the appellants claim personal injuries in the nature of whiplash. They introduced medical evidence which would support an award to them. Primarily, this evidence was based upon statements made by them to a Dr. Ferguson and a Dr. Hogan. The first time appellants were examined by Dr. Ferguson, of Fargo, North Dakota, was one year after the accident, an examination that was arranged by their lawyer. The Schaub family returned less than two months later for another examination by a neurologist in the same clinic. All five appellants were then again examined by Dr. Ferguson immediately before his deposition was taken for use at the trial. Dr. Hogan examined Francis, Marjorie and Daniel Schaub two years after the accident. Both Dr. Ferguson and Dr. Hogan based their opinions upon the subjective complaints made to them, as distinguished from objective findings. Subjective findings were defined by Dr. Ferguson as those based on statements made to him by patients, as distinguished from objective findings, which can be clinically determined. Consequently, the defense strategy was to attack the credibility of those statements to the physicians.

The husband, Francis Schaub, had practiced chiropractic in Minnesota for several years prior to moving to South Dakota, so he was familiar with the type of injuries claimed. Josephine Kean was a registered nurse, who had practiced most of her life in Washington State.

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Schaub v. Job
335 N.W.2d 568 (South Dakota Supreme Court, 1983)

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Bluebook (online)
335 N.W.2d 568, 1983 S.D. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaub-v-job-sd-1983.