Vogt v. McLaughlin

DRAPER, J.

This action seeks damages for personal injuries allegedly sustained by plaintiff wife in an automobile accident, and for items of special damages paid by plaintiff husband for her treatment. Near the close of the trial, defendant admitted liability. Accordingly, but one form of verdict was submitted to the jury, one in favor of plaintiffs, bearing a blank to be filled in for the amount of the award to each plaintiff. The jury returned this form bearing the word “none” in each blank. Plaintiffs appeal from judgment entered upon this verdict.

The accident occurred in Lassen County. Plaintiffs and another couple were deer hunting. Mr. Vogt was driving plaintiffs’ pickup truck. Mrs. Vogt and one of their guests were riding in the rear of the truck, Mrs. Vogt standing and maintaining her balance by gripping a bar. Defendant, with his brother and the brother’s wife as guests, also was hunting deer. His automobile turned into the dirt road along which plaintiffs were travelling, followed plaintiffs’ truck for a short time, and then struck the rear of that truck. Mrs. Vogt and the guest riding in the rear of the truck with her testified that she was thrown to the metal seat placed on a board across the bed of the truck, striking it with such force that the back of the seat was bent. She testified that she felt immediate pain in her low back. Defendant’s witnesses testified that Mrs. Vogt was not thrown to the seat, but remained standing after the collision. The evidence was in conflict as to the force of the impact of the two vehicles.

Mrs. Vogt received her first medical attention two or three days after the accident. Dr. McKenney, who then treated her, was not called as a witness. There is testimony that Dr. Mc-Kenney “treated her about once a week for about four months, feeling that she had suffered a soft tissue injury to her lower back and to her neck,” but there is no testimony as to his specific findings of the date or cause of any such injury. The accident occurred September 27, 1955. Following her treatment by Dr. McKenney, Mrs. Vogt was examined at the Palo Alto Clinic January 19, 1956. Later, she was examined by Dr. Klabunde in San Francisco and was hospitalized from May 18 to June 25, 1956, for treatment of neck and back

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injuries. She was again hospitalized for like treatment from June 13 to July 3, 1957. Although her testimony dealt only with low hack complaints, histories given by her to doctors show complaint of neck pain as well. There was evidence that she had sustained a neck injury in an automobile accident some 20 years earlier. She testified to acute swelling of hands, legs and feet following the accident here sued upon, but some medical testimony was that such results would not follow from the claimed injury. Moving pictures of plaintiff, taken some six months before trial, showed her engaged in physical activities in maintenance of the hotel operated by her husband and herself.