Opinion
Rehearing Denied Dec. 20, 1930
Hearing Granted by Supreme Court Jan. 19, 1931
Appeal from Superior Court, City and County of San Francisco; Franklin A. Griffin, Judge.
Action by Howard F. Ware, a minor, by Arthur F. Ware, his guardian ad litem, against Charles McPherson and others. Judgment for plaintiff, and defendants appeal.
Reversed unless modification accepted.
COUNSEL
Treadwell, Van Fleet & Laughlin, of San Francisco, for appellants.
Vincent W. Hallinan and James J. Roach, both of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff was injured by being hit by defendants’ automobile. He commenced an action to recover damages. The jury returned a verdict in favor of the plaintiff for $3,000. From a judgment entered on that verdict, the defendants have appealed and claim that the verdict is excessive. In their brief the defendants recite much of the evidence as to the plaintiff’s injuries.
The plaintiff testified as follows: He was injured around the knee, and had several cuts on both legs. His right eye had a large cut over it. One arm was strained a bit, and his chest hurt him very badly. His nose was hurt. He bled at the nose very badly, and his arm and eye were bleeding. The accident occurred on April 10, 1927. The action was tried August 22, 1929. At the time of the trial, the plaintiff testified that he still felt the effects of his injury— his knee bothered him, his lungs bothered him, and his head bothered him quite a bit. If he tries to engage in athletics, his knee gives away on him. When he runs down the track, his right knee gives under him, and he has to turn himself about and stop. Occasionally when he walks it does the same thing, or when he stands still. These things happen very frequently sometimes, and at other times just occasionally. At the time of the accident, he was attending the Polytechnic High School in San Francisco. He was active in athletics, and took part in soccer, basketball, and track athletics. After the accident he went back to school and finished that year, and then took a post graduate course. There is no evidence the plaintiff missed a day at school or that he was laid up as a result of the injury. In May, 1927, about a month after the injury, he took part in the field day exercises and ran in the 75-yard dash and in the relay race. He was unable to indulge in athletics after he went back to school. He could get around on his knee, but it was stiff. He had been running in 100-yard race and the 220. After he returned to school, he could manage to run them, but could not run them fast. His knee would bother him an awful lot. At the time of the trial, he was unable to play basketball. Regarding his chest at the time of the trial, he stated that he had short wind. At the time of the accident there was a sharp pain across the chest. The soreness in the chest was gone after about a week. At the time of the trial, if he exercised himself very much, his wind was short. As to the cut over the eye, no stitches were taken in it. Before the accident, the plaintiff’s nose was straight, but at the time of the trial the plaintiff testified when he gets a cold one nostril is very hard to breathe through. His nose does not bother him right now. If he does very violent exercise, he breathes through his mouth. Since the accident, his head others him. He has headaches sometimes, and then it is very hard to work at figures. He cannot concentrate for any long period the way he used to do. He is engaged in bookkeeping and billing. He has trouble in concentrating on figures. If he figures on something for a while, he just stares at it, and it means nothing to him. He did not have any trouble like that before the accident occurred. Nor did he have any difficulty in school work. During the last year he did not seem to get down and concentrate on his subjects. He had a nosebleed on the morning of the trial. Prior to the accident he had a few nosebleeds as the average person has. He has a nosebleed every two weeks. He has dizzy spells, but was not bothered that way before the accident. At the emergency hospital the plaintiff received first aid and was then taken to the St. Francis Hospital. At the latter place the doctor examined the plaintiff thoroughly. That was Dr. Green. After making a thorough examination, the doctor washed the cuts, told the plaintiff how to treat himself, and said he would call again. The doctor came to see him once or twice. The plaintiff was sure he came once. That call was within a week after the accident. After the accident, the plaintiff’s mother was at the St. Francis Hospital and he visited her there and on some occasions saw Dr. Green. When the plaintiff first saw Dr. Green, he told him about the injury to his knee, and Dr. Green advised him to place it in hot water and put Epsom salts and hot applications on it. The plaintiff followed that treatment for a couple of weeks. The pain did not leave on the first treatment, and Dr. Green took an X-ray. The doctor did not prescribe any further treatment after the X-ray was taken, except he told the plaintiff to keep on adding hot applications. He continued the treatment for a week or more. The plaintiff complained to Dr. Green of pains in his chest and the difficulty of breathing. The doctor made a thorough examination, and told him to rub his chest with salve and things like that. The plaintiff applied the salves for about two weeks. He did not complain to Dr. Green about any injury to his nose. Within a week after the accident, he suffered a nosebleed, but he did not tell that fact to Dr. Green. He has never consulted any doctor about the bleeding of the nose, has never had any treatment for it. He did not call to the attention of Dr. Green any injury about his head. Neither has he ever called it to the attention of any other physician. Everybody has a nosebleed now and then, and so did the plaintiff before the accident. Sometimes he would not have any nosebleeds and sometimes he would. That had been through all of his life. He gets the dizzy spells every once in a while. Sometimes they come twice a week and sometimes three times a week. He has never consulted Dr. Green about that nor any other physician. When the X-ray was taken, it was taken around the knee. That was the only portion of his body of which an X-ray was taken. On July 12, 1929, when the plaintiff gave a deposition, he was examined regarding nosebleeds and injury to the knee, and was asked if he had any other complaints. He replied, "Just that nervousness." It is more or less where machines are concerned— sudden stopping of machines or squeaking of brakes. He did not mention anything else because he was too nervous.
Dr. Mansfelt examined the plaintiff a day and a half before the trial. He examined the plaintiff’s nose, and testified that it showed a deviated septum and apparently a healed fracture. The general appearance of the nose showed it had been fractured. The plaintiff has a rundown condition and seems somewhat nervous. He weighs 125 pounds, and should weigh 145 pounds. In reply to a hypothetical question, the witness stated that the plaintiff’s rundown condition was probably due to the shock of the accident. Objectively he did not find very much of an indication of nervousness, but all the witness could assume was what the plaintiff told him. The nosebleed might be the result of trauma to the nose at the time of the accident. In his examination he did not find definite symptoms of the trauma or fracture, but very suggestive symptoms of an old fracture of the nose. The left nostril is very small, due to the deviated septum. To put the nose in proper condition, it would necessitate an operation of straightening the septum. That operation would require the removal of a part of the bony structure.
Dr. Green testified that after the accident he was called upon to treat the plaintiff. He examined him at the St. Francis Hospital. He examined him thoroughly, and found the plaintiff suffering from contusions on the knees, a laceration over the eye, nothing to indicate any serious nature whatsoever. At the time of the examination, the plaintiff complained that the knees were paining him. His main complaint was as to his knees, and there was a slight cut over his eye. He did not complain regarding his nose. He did not speak about pain in his chest. Under his examination, the witness found there were no fractured bones. The second time the witness went to see him, the witness did nothing. After the first examination, the plaintiff complained again of his knee. The witness took an X-ray and produced the negatives in court and testified regarding them. The X-ray was taken eight days after the accident. One of the pictures shows an old-standing condition in the knee. That condition is what is called "Osgood Slater’s disease." That condition was not produced by the accident. It could not have been so produced. It is a condition that a recent injury could not possibly produce. Osgood Slater’s disease is not uncommon. It is caused by indirect trauma. You would probably see evidence in the left knee the same as in the right. After he had taken the X-ray and pronounced him as having no fracture, he made no further examinations and did not see him at all. He never complained to me of nosebleeds, nor that a deep breath would cause him pain, nor that he had difficulty in concentration, nor that he had previously been to specialists. The peculiarity shown in the X-ray was not caused by being hit by the automobile. The X-ray shows nothing in the line of fracture or injury to the knee.
Dr. Kyle testified that the X-ray contained no evidence of any recent injury. They do show Osgood Slater’s disease. That disease may be due, as far as we know, to continuous small trauma— continuing trauma— such as exercise. That disease is never the result of a direct injury to the knee. There is nothing in the X-rays that shows any evidence of an injury at that time. The disease shown by the X-ray could not have been the result of the injury only eight days prior. The soft tissues could have been injured within eight days without the X-ray showing it, but not the bony tissues. Unless it was at a time when the disease was active, it is very doubtful whether trauma would aggravate the Osgood Slater disease. If a person is endeavoring to run and take violent exercise, Osgood Slater’s disease does not tend to have the leg give way and throw the person to the ground.
The record contained no evidence contradicting the testimony given by Dr. Kyle.
About a week prior to the trial, Dr. Silberman examined the plaintiff. He testified that he examined him with respect to his various injuries complained of. The plaintiff complained of a cut over the eyebrow, of bruises to both elbows, and minor lacerations about the elbows, and lacerations about both knees, and particularly about the right knee, and a contusion of the left chest. The plaintiff stated to the witness that the knee bothered him for about a month and was stiff for about a month, and after that it did not bother him. The chest he said caused him some shortness of breath, caused him pain on taking a deep breath or exercising himself. This was felt in the chest, and it all passed away. The plaintiff further stated to the witness that his nose would bleed on an average of once every two weeks. The witness examined him and found a scar under the right eyebrow hardly visible and no traces of any contusion remaining at that time and very minute scars remaining on both knees. He examined the nose and found a deflected septum. The plaintiff also said he had nosebleeds before the accident, but not as frequently as after. The septum was deflected to the left, and the plaintiff could not breathe on that side. Nearly everybody has a deviated septum in some degree or other. The swollen turbinated and deviated septum was not due to the injury, because an injury severe enough to cause a deviated septum and pronounced turbinated bone would have broken his nose. The condition the witness found present in the plaintiff’s nose caused the nosebleeds. The plaintiff made no complaint to the witness that required any other extended examination.
In reply to the foregoing, the plaintiff claims that there is other testimony in the record. He quotes much that has already been set forth above. He quotes the testimony of the plaintiff’s mother where she testified that prior to the accident plaintiff’s nose was perfectly straight, but that since the accident she has noticed a difference. His nose is enlarged and he has a hump on the nose which he never had before. However, the plaintiff sets forth no part of the record showing that the condition of the nose at the time of the trial was referable to any injury received in the accident. He quotes the testimony regarding the claim of loss of power to concentrate, but he quotes no part of the record showing that such loss of power was caused by the accident. Continuing, the plaintiff asserts that under all of the evidence the plaintiff could have suffered a knee injury without the X-ray showing it. Conceding such to be the testimony, it is clear that, if the X-rays did not show the plaintiff’s injury to be due to the accident, then the plaintiff was bound to show that fact by other evidence. But he did not do so.
The record shows without conflict that the plaintiff did not suffer from any broken bone or bones, any major lacerations, any intense pain of long or short duration, nor any permanent disorder shown to be the direct or indirect result of injury received in the accident. The record does not disclose any evidence of special damages of any kind or nature. A comparison of the evidence with the verdict convinces us that the jury was moved by considerations foreign to the evidence in arriving at the amount of $3,000 in the verdict. Barrett v. S.P. Co., 207 Cal. 154, 277 P. 481. Moreover the facts are such as to suggest at first blush passion, prejudice, or corruption on the part of the jury. Morris v. Standard Oil Co., 188 Cal. 468, 473, 205 P. 1073. The verdict was clearly excessive in so far as it exceeded the sum of $500.
We believe that a reversal is required unless plaintiff is willing to consent to a modification of the judgment hereinbefore rendered. It is, therefore, ordered that, unless within thirty days from the filing of the remittitur herein in the lower court the plaintiff shall release all but $500 and costs of the judgment rendered by the trial court, such judgment shall be and it is reversed, but that, if within such time plaintiff consent to such reduction in said judgment and releases therefrom all but the sum of $500 thereof and costs such judgment as so reduced shall be and it is affirmed; said judgment for the reduced amount to bear interest at the legal rate from the date of the entry of the original judgment of the superior court and neither party to recover from the other costs on this appeal.
We concur: NOURSE, P.J.; SPENCE, J.