McDonald v. Schwartz

KAUS, J. Plaintiff appeals from a judgment entered on a jury verdict awarding her damages in the sum of $30. She claims that the award is inadequate as a matter of law.

The litigation was the result of an accident which occurred on April 23, 1962, when plaintiff’s car did not pull away from an intersection as fast as defendant, who had stopped behind her, thought it would. There was a collision, either negligible in impact or sufficient to propel plaintiff’s car one car length into the intersection, depending on whom one believes. There is no doubt that on May 4, 1962, only 11 days after the accident, plaintiff went through low back surgery, which revealed two herniated intervertebral discs. A laminectomy and fusion were performed. Plaintiff’s claimed special [901]damages for this operation, other medical expenses and loss of earnings are almost $3,500. The reasonableness of the charges as such is not disputed. There was slight damage to plaintiff’s automobile, variously estimated at $33.74 and $12.98.

In October of 1960 plaintiff was the victim of an industrial accident when she was employed by Ryan Aeronautics. The mechanics of that accident are that plaintiff fell on some steps. Plaintiff did not return to work between October 1960 and the day of the automobile accident about 16 months later, but, of course, was planning to go back to work at the time of the later accident. She saw a variety of doctors after the industrial accident, some for treatment, some apparently at the request of her employer and at least one, Doctor Faeth, in his capacity as an independent medical examiner appointed by the Industrial Accident Commission.

Plaintiff’s workman’s compensation claim against Ryan was settled for $12,308.68 just before the automobile accident, on condition that she pay her own medical bills. She testified that this settlement was negotiated by her attorneys, that she did not approve of it but was forced to go along. She even called a referee of the Industrial Accident Commission on April 4, 1962, and told him that she was dissatisfied with the settlement.

It is evident that plaintiff did not persuade the jury by a preponderance of the evidence that any but a minute portion of her problems which led to surgery were the result of the automobile accident.

Neither plaintiff nor the doctor who performed the surgery —and who had never seen her before the accident—made very attractive witnesses. The first practitioner plaintiff went to see after the automobile accident was a chiropractor who only massaged her neck. She did not return to him as requested and went to another doctor who did nothing for her but refer her to the surgeon. Direct examination of plaintiff concerning the industrial accident was perfunctory. She claimed that only one of the doctors who had examined her— Doctor Faeth—had recommended surgery. She had decided not to undergo any, because the pain “had begun to kind of go away.” The examination set forth in the footnote gives the gist of her testimony.1