*1 219 I agree cannot knowledge a normal adolescent boy facts been has to avoid hazards which made ob- responsibility vious to him use of the that in the premises, own absence such knowledge he had no to determine before duty danger the potential 68,160 736; from the plunging dock. Pinehurst Co. 163 A. Phelps, v. Md. Stungis Realty Wavecrest Neb. 248 N. W. Webb v. v. Co. Thomas, 133 Colo. Aetna Co. (2d) P. Caruso v. Ins. (La. App.) So. Am. Jur. Amusements and Exhibi- tions, 84; Annotation, 1 A. L. R. § 963. COLGAN, COLGAN,
GARY MINOR, A BY JOHN INDIVIDUALLY GUARDIAN,
AND AS FATHER AND NATURAL LAYTON RAYMOND. 40,102.
October 1966 No. *2 Senn, &
Moonan for appellant. Plunkett, for respondent. Richard H. Plunkett Law and Office Murphy, Justice. denying defendant’s is an from order of the district court
This an appeal (1) given were damages for a trial. contends Appellant motion new excessive; and under the influence of and and passion prejudice to made holding arguments the court erred in that certain (2) counsel jury by plaintiff’s were not prejudicial. special damages, to Colgan John recover brought by
The action is son, Colgan. his minor individually, Gary general defendant, thus it un- on the negligence part record establishes injuries sustained causing discuss facts necessary automobile an occupant to state that he while injured was except driven defendant. which was struck from the rear a vehicle student age high and a school injured years when was Plaintiff Scout. work, Eagle the rank of attained having in Scout Boy active been an he had Friday, on September Prior to accident following the His activities sports. in athletic many active participant were in day accident restricted due and lameness Ms back. The reactions, after the accident he by pain severe manifested experienced his neck and back area. following Monday he had to leave school Mayo because of X at the rays extreme were taken pain, whereupon Although Clinic. a course of inter- therapeutic gave treatments him relief, mittent unchanged. Ms condition remains He discontinued basically athletic activities and was excused from education courses physical but school did make some unsuccessful in track and engage attempts In the bowling. mtervening vacation he did Scout periods light work at camp and employed “cleanup boy” doing was chores at the light Mayo Clinic. Durmg summer the trial he preceding employed in a canning where factory, long he worked hours but was never pain. dull, Plaintiff testified that when he was inactive the pain would but when physically active it would increase severely. heat,
To relieve prescribed physicians aspirm plaintiff was sent to the of Physical Medicme for Department diathermy Thereafter, treatment at the Clime. heat Mayo treatments and mas- lamp sages prescribed and administered. was shown how *3 spinal extension exercises and to begin activity cautiously. advised sports He a board under the and a given mattress was slept “Spencer” back brace garment as a corrective It Joseph measure. was Dr. N. Janes’ at opirnon the trial plaintiff aggravation that “suffered an of a condition midback, which was present in Ms juvenile so-called epiphysitis, I believe he a ligamentous suffered in the injury region.” midlumbar There was testimony might some that the pain by spinal eliminated a operation, fusion but this treatment was never recommended nor con- “growth sidered. The described as a disturbance in epiphysitis physician vertebrae, know, bodies of the of cause wMch we which makes an of the vertebrae at the and at the irregularity bottom.” tip is stated that condition and “can symptomatic discom- produce fort. It seemed that in tMs case he had no discomfort before ac- [the in this and he did area afterwards. But I believe the in the changes cident] bone were at the of the present Ligamentous time accident. sprain. ligament another word for A is a structure that holds bones to- gether, torn, and those structures can be or stretched sometimes and they are productive of when The X happens.” rays es- definitely tablished the epiphysitis condition but would not show the ligamentous at least not until The damage, attending calcification set in. physician as ligamentous injury defined the in the lumbar area a similar to sprain ankle, reactions from a experienced sprained opinion, based seat upon X-ray evidence and at the symptoms injury, was that a sustained plaintiff 10-percent permanent impairment of the spine “as a whole.” $10,000,
A verdict awarded approximately excessive, $450 The attacked as special damages. verdict defendant subjective arguing plaintiff’s complaints wholly that unsupported findings. medical relies on those factual defendant authorities which have viewed as verdicts based on sub- suspect large evidence of jective injured symptoms described plaintiff.1 Jackson, reliance on Tanski v. 269 Minn. defendant places where, circumstances, similar under somewhat N. W. $10,500 who a fracture of young held that an award of man sustained vertebrae, injuries, substantially as other but who had well as minor $2,500. granted A new was unless recovered, plain- excessive trial case, however, should be noted tiff consented to a remittitur. It disability was conditional testimony the medical permanent there testified that The doctor who attended tentative. his office 10 to 15 while degree percent, would be from disability dis- indicated he had recovered fully permanent records court had the responsibility out the trial ability. We pointed for damages a verdict circumstances where a remittitur under granting of the trial case, memorandum the accompanying was excessive. in grant- and we stated damages, to the issue court no reference made of the trial without benefit acted “reluctantly” ing remittitur that we Gordon Packing Armour Co. 1 Lowe v. Cameron N. W. v. Land of Lakes Motor Co. *4 Chicago, I. & R. (2d) 200, Propper v. Evans, 62 W. N. 840, R. 386, 35 A. L. Minn. Ry. P. Co. 237 Jackson, Tanski v. Dibbs, 332, 98 W. Romano v. 304, 492. 130 N. court’s observations or do not labor under that dis- impressions. We case; in advantage carefully the benefit of a considered memorandum of the trial court which the issue of fully motion, defendant’s analyzed. discussed and trial denying testimony court’s memorandum reviewed the medical as follows: “(1) Clifford Janes’ testimony An examination Dr. —direct following: cross —discloses the
“(A) Treatments examinations at the clinic medical staff were and/or on the dates: following 2, 1961). 29,
“1. October (injury September 7,1961. “2. November 16,
“3. Improvement November noted. Heat lamp treatments 1961 — prescribed.
“4. 17, 7, 159/19) ? February R.P. (February Tenderness 1962 — still experienced. noted — 24,
“5. 1962. February 2, April “6. extension exercises Spinal prescribed. 1962 — 1, “7. June 31,
“8. August extension again exercises Spinal prescribed 1962 — after having ‘been at camp and on a sleeping soft bed.’ Advised to refrain from football and cross country.
“9. October Spencer Garment All prescribed. phy. ed. 1962 — curtailed swimming. except
“10. May ed. phy. curtailed again. 1963 — July “11. Spinal again prescribed. extension exercises 1964 — “12. September 1964 —Excused from classes. gym “(B) treatments Therapy at Clinic about eight times in addition. “(C) Dr. Janes’ diagnosis:
“1. An aggravation of a condition pre-existing back, in mid so-called juvenile epiphysitis. ligamentous
“2. A in the injury mid region. lumbar “(D) Dr. Janes’ opinion was that aggravation epiphysitis ligament well as the lumbar area were permanent (10% ) a ten leaving percent impairment as a spine whole. *5 “(E) the X-rays disclose back condition of pre-existing epiph- the the diclose aggravated; X-rays which doctor believes was ysitis, no other Dr. Janes as not disability. ‘Tenderness’ was considered by seems, entirely subjective it and both he and Dr. symptom, Lipscomb (the 7, 1961).” noted such letter in February tenderness of the jury both the trial court and the were convinced Apparently court stated that In his memorandum the trial plaintiffs veracity. not that were testimony persuaded jury complaints injuries be and were could well satisfied the feigned; jury that accident; of the disabling actually real and sustained a result were injuries 10-percent back permanently persist, leaving would case, under a verdict disability. He concluded that the evidence of $10,000 excessive. to be alleged this court extent to will review verdicts which in numerous In Cam has been discussed cases. excessive or inadequate out Evans, pointed eron v. Minn. are closely damages should be scrutinized where large verdicts issue say but went on to that that subjective based upon symptoms only, not be court whose action will rests in the discretion trial largely discretion has been on unless it clearly appears reversed appeal cases, the is be to all abused. there that can yardstick Since applied are damages. each as a We facts of case must serve measure peculiar Gunderson, controlled our decision Marlowe here 115, 119, sustained where it excessive. We damages and was asserted that whiplash injury said there: is no fixed standard that there generally recognized is
“It so can determined and even more injuries personal has deal with a whiplash where the circumstances present under objective findings. from medical receive limited aid only and can evi- think the findings, we subjective depend upon the verdicts While limits reasonable at within they fairly is arrived dence such that ignore We cannot life Harriet Marlowe. expectancy in view of the fact that verdicts were approved by judge the trial who had heard the evidence and seen the plaintiff’s had at condition the trial.”
In the us case before cannot be said the verdict is based en tirely subjective upon symptoms. The verdict supported competent medical that the opinion asserted real and is related plaintiff’s objective chronic condition and accounts for a degree permanent disability. cases, As we have said many we must be influenced by the fact that the trial court is in a much better are we position than to pass *6 the upon of whether question inadequate. verdict excessive or Maas 461, 18 N. v. Midway (2d) 233, 158 Chevrolet Minn. Co. 219 W. A. L. R. 215; (3 ed.) 394; Dunnell, 1 Dig. Hellermann, Thiesen § v. 242 Minn. 218, (2d) 762; 64 Annotation, N. (2d) W. 29 A. L. R. 1201 to Small, 275, Zaikaner (2d) 247; v. 98 N. W. McCormick v. Malecha, 33, 266 (2d) 446; Minn. 122 N. W. Clark Chicago & N. W. Ry. 375, Co. 226 (2d) N. W. Siemers v. United Benefit 459, Life (2d) 605; Ins. Co. 246 Minn. 75 W. N. Roeder v. North American Life (2d) 624; Ins. Co. 259 Minn. 106 N. W. Kellett v. Wasnie,
The next raised point defendant prejudicial error oc curred in the to the argument jury by counsel. plaintiff’s It from appears the record that counsel plaintiff’s the so-called rule” proposed “golden argument the to jury they might in place themselves the position the plaintiff or his parents and award such as would wish they if in they position. the same Arguments this character have been and, cases, in See, some held to disapproved be reversible error. Wells v. Ann Arbor Co. 184 Ry. Mich. N. W. Russell v. Chicago, Ry. (2d) 843, R. I. & P. Co. 249 Iowa L. W. A. R. 927; Chicago (8 Cir.) & N. Ry. Kelly Co. v. 84 F. 569. An Annotation, interesting helpful subject discussion is found in 70 A. L. R. 935. The trial court here did not the consider conduct of as complained prejudicial so as to warrant a new trial. Whether the trial court was correct must be in viewed the context of be the record fore us. After plaintiff’s attorney concluded his argument, and before the instructed, jury was counsel for defendant made the following objection: “* * * he used in which of counsel argument to the exception I take remember, son,’ can’t I it son’ or ‘if it was your ‘if our was expression the the asking jury argument And the to it. disregard jury and instruct the things, $500 a for these want, year if wanted they would they what it. It’s through with go would want they personally what applying the jury.” be disregarded should argument improper in his in- was valid and objection agreed trial court said: structions in the advised, yourself are not jurors, you put you
“Now identify You are not or the defendant. of either the position injuries, identify or to son with your his plaintiff, the yourself with should you token And the same the plaintiff. injuries defendant.” yourself position yourself put identify objectionable ar- memorandum, the effects considering court said: the trial gument,
*“* * objectionable argument par- It is this Court’s opinion were to themselves jurors put ticularly suggest as seemed Upon him. re-read- themselves with the plaintiff’s position identify —i.e. ‘you’ and pronoun perhaps I note counsel used the ing argument jurors,’ not as but ‘you, should be construed reference could and *7 ‘man-on-the-street,’ so to While speak. objectionable, a reference instruction the corrective was not argument prejudicial; I believe the harm have any might think does correct I the Court given by attorney’s argument.” the occurred due to plaintiff’s a there should be that whether recognized It is well our decisions in the discretion almost entirely of counsel rests new trial for misconduct except for appeal not be reversed on of and its action will the trial court 247 Minn. Ry. St. Co. Minneapolis Patton v. a clear abuse of discretion. 921; Point Breezy Harris v. A. L. R. 368, 77 N. W. Dunnell, Dig. 322, 56 N. W. Inc. Lodge, Davidson, N. W. ed.) (3 Lott § 158 N. Ry. Co. Smith v. G. error, of the trial have the benefit again considering asserted
In ar- bearing court’s considered as to the the carefully improper views gument may jury had the case. was told upon outcome the disregard the considerations argument, permit improper entirely their their sympathy judgment, affect and to base verdict upon evidence From and a adduced. a review of record full consideration of the circumstances admitted surrounding improper argument, we cannot holding that we that the say would warranted trial court its abused discretion in the motion for new trial. denying
Affirmed.
Otis, Justice (dissenting).
There is no evidence in this record that will at time any require a fusion Such operation. procedure was neither nor rec- contemplated Indeed, ommended by any the doctors. his counsel acknowledged as much in the following colloquy:
“The Court: doctor has not testified as he to whether or not has actually not, recommended that that [the be done in this case or fusion] right? No,
“Mr. Honor, Plunkett: your but this is a type of treatment particular injury.” type Nevertheless, counsel repeatedly urged the award damages for the suffering which such an He operation argued, would entail. other among things, as follows:
“He went on to tell you only treatment that could surgical tend to alleviate these and all it would would be to tend symptoms, to alleviate the pain, was known as Now ad- operation fusion. dition he said after he an immobility would have of these fusion vertebrae, together, third and fourth would be They just vertebrae. fused like a nail through them. It going your means back portion (Italics doesn’t bend more.” any supplied.) discussing plaintiff’s injury would have on his impact employment
prospects, counsel said to jury: now, they employers] may say,
“Now ‘Well what can be [future so boy done to on?’ help [plaintiff’s doctor] *8 procedure is to surgical tell that the recommended will have to them shin, his operate (indicating), lad the bone from and cut on the and take this in his third and fourth lumbar him in the back and bone open put ‘Well, Doctor, then, you will mean They say, vertebrae it. fuse more be as as new?’ spine good he will and his will impairment have case, Dr. not be the that he you say And heard Janes that that would percent impairment, would still at least a ten because the bones are have bend, then and won’t but that it be so for him then painful won’t fused reach, or and he won’t something, he has to move lift quickly, when to been on when he has tried many become so lame as he has occasions (Italics things.” supplied.) these Later again argued:
“* * * [Tjhe in the the pain be done to alleviate only thing can operation. lumbar is this spine concerned, operation this
“Now insofar as is unless he has Gary in the Janes is pain, permanent relieve the Dr. testified help (Italics is, on as at It’s permanent.” it least. sense that it will continue supplied.) need for wholly unjustified references
Not content with these by saying: concluded a fusion operation, fusion, concerned, Dr. Janes as as as far Gary “Now his back. out, this lad is going pointed “* * * if years, In five you. he come back But remember that can’t operation, and those spinal major is a performed fusion —and surgery know serious very that it’s of us who all acquainted to come back wrong, —if he able something should won’t go for a asking you folks, take into account ‘Well, we didn’t say, (Italics verdict.’” supplied.) line argument, to this except not specifically
While defendant did fusion procedures such objections testimony describing previous four new for a trial. grounds assigned had been overruled and were *9 error, To his counsel compound damages placed the fol- arguing lowing price tag plaintiff’s right on life: lead a normal
“* * * * * * $500 a for one year year? Would be worth to you You wouldn’t sell it for anything.” argument
To this took defendant The trial court in its exception. mem- and the orandum its majority opinion acknowledge impropriety.
Finally, subject in the record and to defendant’s any support objection, court could charged recover im- paired earning suggested Counsel in his capacity. argument plain- could $210,000 tiff normally to earn his lifetime and that expected the 10-percent permanent his partial back to which doctor testified $21,000 damages award of for this element of alone. This the justified court permitted notwithstanding any testimony total absence cor- relating claimed disability earning impairment capacity. This case deals collision with a rear-end from plaintiff unques- Nevertheless, tionably suffered an he serious immediate injury. had symptoms those he ultimately experienced largely subjective. in a school football from the time the ac- part high took celebration evening. cident at 3:30 in the afternoon until 10:30 that Thereafter he finished school successfully year, following worked the summer as boys’ in a swimming camp, instructor and later drove California and back uneventfully.
Under all these I submit the verdict so tainted circumstances matters, wholly invitation to consider extraneous prejudicial counsel’s record, trial on correct new can it. To hold only is to which both the trial otherwise from tactics permit profit court condemned as court have unfair.