Reznick v. Hillman-Sidney Auto Sales

ASHBURN, J.

This is an action for personal injuries received when plaintiff’s car, standing at an intersection in obedience to a traffic light, was struck in the rear by defendant’s car driven by defendant’s agent. Plaintiff claims to have suffered a whiplash injury in the accident, which occurred on December 9, 1959, and that the whiplash had developed at the time of trial (April 26, 1962) into a herniated disc. Plaintiff’s special damages aggregated $2,674.50; included therein is an item of $159.60 for repairs to plaintiff’s Borgward sedan and $36 paid to Southern California Permanente Group, of which plaintiff was a member, for three preliminary examinations of plaintiff by its doctors (total $195.60). The jury rendered a verdict in plaintiff’s favor for $200, and counsel in their briefs agree that this amount represents the total of the last mentioned items.

Plaintiff appealed and urges three main points, (1) that the evidence is insufficient to support the verdict, in that it affirmatively shows without contradiction that plaintiff suffered physical injury in the accident which is not and could not be included within the $200, (2) that the court erred in refusing an instruction requested by plaintiff to the effect that defendant’s failure to call as a witness Dr. Blunden, who had examined plaintiff at the instance of defendant only four months after the accident (contenting itself with the testimony of Drs. Adelstein and Marinacei, both of whom saw the plaintiff not sooner than two years after the accident), raised a presump

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tion that Dr. Blunden’s testimony would have been adverse had he been called, (3) that the court erred in submitting to the jury as a question of fact the issue of proximate cause.

It was conceded by defendant's attorney at the beginning of the trial that defendant is liable for any injuries suffered by plaintiff in the accident, which of course amounted to a concession of liability for any and all injuries proximately so caused. Because it is dispositive of the appeal we deem it necessary to discuss only the claim of insufficiency of the evidence; the other alleged errors may or may not occur upon the new trial which we find inevitable.

Counsel for respondent argue that the sole question canvassed at the trial was whether plaintiff was suffering or had suffered from a herniated disc. Their brief says “the issue before the jury was not whether or not the plaintiff had some injury, but rather clearly and simply—does the plaintiff have a herniated disc” and that the case “was tried on the sole issue as to whether or not the defendant’s negligence proximately caused a herniated disc in the body of the plaintiff.” This is an overstatement. The record shows that defendant’s aim was a trial of that single issue but it does not warrant the assertion that plaintiff’s counsel did not strive for half a loaf if he could not gain a whole one.