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Zimmerman v. Ausland

September 10, 1973

ZIMMERMAN, RESPONDENT,
v.
AUSLAND, APPELLANT



Appeal from Circuit Court, Coos County. James A. Norman, Judge.

Patrick Ford, Medford, argued the cause for appellant. With him on the briefs were Ford & Cowling, Medford.

Fred Allen, Coos Bay, argued the cause and filed the brief for respondent.

In Banc. Tongue, J. McAllister, J., concurs in the result.

Tongue

This is an action for damages for personal injuries sustained in an automobile accident. Defendant admitted liability. The issue of damages was submitted to a jury, which returned a verdict of $7,500 in favor of plaintiff. Defendant appeals. We affirm.

Defendant contends that the trial court erred in submitting to the jury the issue whether plaintiff sustained a permanent injury, as alleged in her complaint, and in instructing the jury on plaintiff's life expectancy, after taking judicial notice of the Standard Mortality Tables.*fn1

In support of that contention defendant says that those instructions and the submission of those issues to the jury constituted error because there was no evidence from which the jury could properly find that plaintiff's injuries were permanent; that in this case the evidence established that plaintiff's condition, involving an injury to her knee, "is curable by routine surgery"; that all injured persons have a duty to mitigate damages by submitting to surgery "where the risk is small and a favorable result reasonably probable"; and that this "precludes any instruction on permanency."

Summary of the evidence.

Plaintiff testified that her right knee was injured in the automobile accident. She said that as of the time of trial she still suffered swelling and pain in the knee after walking, as in shopping, and that as a substitute teacher she was no longer able to participate in physical education activities involving "physical games" or to play volleyball and tennis, as in the past.

Her doctor testified that plaintiff suffered from a torn semi-lunar cartilage in her knee; that "the probable future of this knee" was "one of gradual deterioration"; that her injury was "permanent"; and that it was "very probable" that she would "require a surgical procedure" to remove the torn cartilage. He also testified that after such an operation "the recover [sic] is fairly good" and that "the outlook for good recovery would be very optimistic."

In addition, plaintiff's doctor testified on cross-examination by defendant's attorney that he had not prescribed any "treatment" for plaintiff; that surgery is "not always" required in cases like this; and that "* * * [t]here are two indications for immediate surgery. One, if the knee is locked. The other is if it is catching and allowing a person to fall. Otherwise, it's pretty much a matter of how much it is bothering a patient."

Defendant's doctor, although disagreeing with the diagnosis that plaintiff suffered from a torn semilunar cartilage, testified that if she did have such an injury, as is "a very frequent injury seen in athletes," the torn cartilage should be "surgically excised," i.e., "removed in total," and that after such an operation "the patient should recover completely" and be able "to return to all normal and usual activities."

He also testified that "If the meniscal injury is of a fairly major significance and there's a major type tear, the patient will have acute symptoms from which he will never recover without surgery of the meniscus," but that if the symptoms are not "clear cut and they still seem to have ...


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