Heiman v. Market Street Railway Co.

STURTEVANT, J.

—This is an action to recover damages for personal injuries. In the second amended complaint Josephine Heiman, one of the plaintiffs, alleged that she was injured by being struck by one of defendant’s cars on the 5th day of June, 1935. It is also alleged that Leo P. Heiman, her husband, incurred numerous expenses and was compelled to make numerous expenditures for medical care and treatment of his wife, and that he lost a considerable sum being the reasonable value of her services. In the complaint it is alleged that in the accident Mrs. Heiman suffered “extreme shock to the nervous system, numerous contusions upon the body and legs, ecchymosis of the occiput of the head, ecchymosis of the left eye, lacerated wound on the inside of the upper lip with surrounding ecchymosis, involvement of the nerve supply to the arms and legs, and concussion of the brain”. It was also alleged “that prior to and before the collision and accident aforesaid, said plaintiff, Josephine Heiman, was an able-bodied woman; sound in mind and body, etc.”. The defendant filed an answer in which it admitted it was a corporation operating a street railroad, but denied all of the other allegations contained in plaintiffs’ complaint. The action was tried before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiffs for $800. The plaintiffs made a motion for a new trial, the motion was denied, and they have appealed from the judgment entered on the verdict.

The case was presented by the parties in the trial court on two radically different theories. It was the theory of the plaintiffs that Mrs. Heiman was seriously bruised and that as a result of the impact she was rendered a physical and nervous wreck. On the other hand, it was the theory of the defendant that Mrs. Heiman was a malingerer and

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that she was attempting to claim as injuries suffered in the accident things that were in no manner referable thereto but were the results of other ailments and injuries. The defendant in that connection developed the fact that on June 5, 1935, the date of the accident and for several months prior thereto, Mrs. Heiman was going through the period of change of life. They also developed the fact that in April, 1936, while riding in an automobile at Willits, Mendocino County, Mrs. Heiman was seriously injured in a collision. The trial was had commencing June 15, 1936.