Opinion
2-18-1954
NELSON v. BLACK. * Civ. 15447.
Leonary J. Bloom, James M. French, Kennedy & Bloom, San Francisco, for appellant. Body, Taylor & Reynolds, San Francisco, for respondent.
NELSON
v.
BLACK. *
Feb. 18, 1954.
Hearing Granted April 14, 1954.
Leonary J. Bloom, James M. French, Kennedy & Bloom, San Francisco, for appellant.
Body, Taylor & Reynolds, San Francisco, for respondent.
DOOLING, Justice.
Plaintiff appeals from a judgment for defendant following the verdict of a jury. The action was for damages for personal injuries which resulted when the automobile driven by defendant collided with the rear of the truck driven by plaintiff while plaintiff's truck was stopped at an intersection. By an amendment to his answer filed before the trial defendant admitted his negligence, withdrew his plea of plaintiff's contributory negligence and (quoting): 'admits his liability for any and all damages sustained by the plaintiff proximately resulting from the accident.' In this state of the pleadings the jury must have found that plaintiff sustained no damages proximately resulting from the accident in order to bring in its verdict for the defendant. The sole claim of plaintiff on appeal is that the verdict and judgment are not supported by the evidence.
Plaintiff made no motion for new trial and respondent cites the cases holding that the claim of a party that the damages are excessive, Bate v. Jolin, 206 Cal. 504, 274 P. 971, or inadequate, Alexander v. McDonald, 86 Cal.App.2d 670, 195 P.2d 24, cannot be urged on appeal unless his claim has first been presented to the trial judge by motion for new trial. These cases are not in point. The claim here is not that inadequate damages have been awarded to plaintiff, but that the judgment has been given to the wrong party, the defendant, when the evidence requires a judgment for the plaintiff in some amount. The rule applicable was settled by our Supreme Court in Smith v. Lightston, 182 Cal. 41, at page 43, 186 P. 769, at page 770, in which the court said of sec. 956, Code Civ.Proc.: 'This clearly gives this court authority to consider the sufficiency of the evidence to support the verdict or findings in every case where the evidence is properly included in the record on appeal * * * without regard to the question of there having been a motion for a new trial.'
The evidence shows tiwhout substantial contradiction that the plaintiff suffered some injury as a result of the collision. He testified that his head bumped the back of the cab of his truck resulting at once in a stiff neck. He at first regarded the injury as trivial and told defendant to forget about it. A few minutes after leaving the scene of the accident, however, his neck started hurting so badly that he telephoned to his doctor's office and made an appointment with the office nurse to see the doctor. He then proceeded immediately to the doctor's office where the doctor examined him and had X-rays taken. The X-rays were negative but the doctor diagnosed his condition as a 'whip' injury to a right nerve of the neck with a possible slight concussion (injuries which an X-ray would not disclose) and advised complete rest until the pain subsided. Plaintiff drove from the doctor's office to the service station which he owned and arranged for a relief man to take his place there and then went to his home. Thereafter he visited the doctor frequently complaining of pain in his neck and headaches.
The accident occurred on March 27, 1950. The pains and headaches were gradually ameliorated and after they began to slacken off plaintiff returned to his service station where he has worked continuously since. At the trial in November, 1951 he testified that he suffered from headache only once in every two or three weeks. During the first two months plaintiff was hospitalized twice, once for one-half day when he was given a novocaine injection in the neck, and again for two days for further tests and diagnosis. During this time he had X-ray and therapy treatments. At all times he visited his service station at least once a day, the rest of the time he just loafed around his home. Medical and hospital bills totaling over $600 were introduced at the trial.
Defendant argues that because plaintiff's symptoms were all subjective and because of certain respects in which his testimony was impeached the jury was entitled to disbelieve all of his testimony and to conclude that his entire testimony was false, and that he received no injury in the collision. The facts cannot be contradicted that almost immediately following the collision he visited his doctor and described to him his injury and resulting pain, that on the same day he hired a man to take his place in his business and went home as the doctor directed. His physician testified to plaintiff's suffering and when asked if he did not rely entirely on what the plaintiff told him he answered: 'You can tell by the looks of a person if he is in severe pain.'
Entirely apart from this, however, the only medical testimony produced by the defendant established without question that the plaintiff suffered a compensable injury as a result of the collision. An expert in neurosis and psychiatry examined plaintiff for the defendant on October 19, 1951. This was over a year and a half after the collision. He found at that time no evidence of nerve injury in the neck nor any other physical effect of trauma. When it was called to his attention that plaintiff had been discharged from the navy for somnambulism and as a psychoneurotic of the anxiety type, he testified: 'Patients who have had a past history of emotional illnesses and psychoneuroses--which means an individual reacts with more emotional feeling to situations than the average person--that this patient did, because of his present injury, would be prone to remember--the patient undoubtedly had some discomfort in his neck from this injury temporarily, and a patient who has a previous history of emotional instability or unstable emotional behavior is more inclined to continue the memory of this discomfort long after the actual cause of it has healed and disappeared * * *. I believe his complaint is due to a pre-existing quality of the emotional stability of his personality.'
The expert for the defendant in this testimony was describing the typical case of traumatic neurosis or traumatic hysteria. The sufferer from traumatic neurosis is not a malingerer. His disability is not feigned but real, although no basis for it can be found in any physical injury. 'Hysteria is a disease and the hysterical patient actually suffers the disabilities of paralysis, anaesthesia, loss of power, or paroxysm, which he claims. Many physicians do not understand hysteria, and because they can not see any demonstrable evidences of organic disease, deny the existence of disease and claim that the hysterical patient is simulating or malingering.' (Herzog, Medical Jurisprudence, § 388, p. 291.)
The jury may have concluded, as Dr. Herzog suggests that even physicians who are not experts on the subject may do, from the testimony of the defendant's medical witness that plaintiff's entire complaint of pain and suffering was false. The witness was careful not to say this, however, and any such conclusion from his testimony is unwarranted. It is admitted that the collision actually occurred and even if plaintiff suffered no actual physical injury as a result of the collision the effect on his nervous system testified to by defendant's only witness on the subject was none the less compensable. Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532, 77 A.L.R. 675; Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434; cf. State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282.
Our Supreme Court in Sloane v. Southern Cal. Ry. Co., 111 Cal. 668, 44 P. 320, 32 L.R.A. 193 was a pioneer in the judicial field in recognizing the inter-dependence of the mind and body. At page 680 of 111 Cal. at page 322 of 44 P., 32 L.R.A. 193 of that decision the court said: 'The nerves and nerve centers of the body are a part of the physical system, and are not only susceptible of lesion from external causes, but are also liable to be weakened and destroyed from causes primarily acting upon the mind. If these nerves, or the entire nervous system, are thus affected, there is a physical injury thereby produced, and, if the primal cause of this injury is tortious, it is immaterial whether it is direct, as by a blow, or indirect, through some action upon the mind.' See also: Taylor v. Pole, 16 Cal.2d 668, 671, 107 P.2d 614; Dryden v. Continental Baking Co., 11 Cal.2d 33, 39, 77 P.2d 833; Chappell v. San Diego & A. R. Co., 201 Cal. 560, 567, 258 P. 73; Lindley v. Knowlton, 179 Cal. 298, 176 P. 440.
It is equally settled that the tort feasor must take the person whom he injures as he finds him. If by reason of some pre-existing condition his victim is more susceptible to injury the tort-feasor is not thereby exonerated from liability. Jonte v. Key System, 89 Cal.App.2d 654, 660, 201 P.2d 562; Taylor v. Sims, 72 Cal.App.2d 60, 65, 164 P.2d 17; Matthews v. Atchison T. & S. F. R. Co., 54 Cal.App.2d 549, 599-560, 129 P.2d 435; Smith v. Schumacker, 30 Cal.App.2d 251, 263, 85 P.2d 967. This rule was specifically applied to a case of nervous susceptibility in Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. at page 683, 44 P. at page 323, 32 L.R.A. 193, the court saying: 'Whether the defendant or its agents knew of her susceptibility to nervous disturbance was immaterial. * * * It was not necessary that this injury should have been anticipated in order to entitle her to a recovery therefor.'
It makes no difference whether the jury believed plaintiff's evidence or defendant's. Whether the plaintiff suffered a whip injury to a nerve of the neck as his physician testified or because of his pre-existing neurotic tendencies suffered only a traumatic neurosis as testified by defendant's expert, his injury was in either case an actual one for which he is entitled to such reasonable award as will compensate him for whatever damages were proximately caused thereby as determined by a jury. The fact that he may have later exaggerated the extent of his injuries, as indicated by the testimony of an investigator who observed him working a full day on July 5, 1950 when plaintiff testified that he only returned to partial work on July 15, and who corroborated his testimony with moving pictures taken at the time, might justify the jury in awarding plaintiff lower damages. It did not justify the jury in awarding him no damages whatever in the face of testimony not substantially contradicted in any fashion that the plaintiff suffered some substantial injury through defendant's negligence.
Judgment reversed.
NOURSE, P. J., and KAUFMAN, J., concur. --------------- * Subsequent opinion 275 P.2d 473.