{ "id": 5359995, "name": "Morgan T. MORRIS, Jr., Plaintiff-Appellee, v. B. F. ROGERS, Defendant-Appellant", "name_abbreviation": "Morris v. Rogers", "decision_date": "1969-07-07", "docket_number": "No. 8774", "first_page": "389", "last_page": "394", "citations": [ { "type": "official", "cite": "80 N.M. 389" }, { "type": "parallel", "cite": "456 P.2d 863" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "79 N.M. 759", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736994 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0759-01" ] }, { "cite": "77 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804399 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0286-01" ] }, { "cite": "74 N. M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803173 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/74/0789-01" ] }, { "cite": "257 Minn. 424", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 337912 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/minn/257/0424-01" ] }, { "cite": "203 A.2d 710", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8099270 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/a2d/203/0710-01" ] }, { "cite": "128 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "106 Ga.App. 691", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1600170 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ga-app/106/0691-01" ] }, { "cite": "65 Ariz. 83", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5173145 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/ariz/65/0083-01" ] }, { "cite": "35 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557938 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/nm/35/0077-01" ] }, { "cite": "79 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2735767 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0269-01" ] }, { "cite": "78 N.M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326323 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0664-01" ] }, { "cite": "79 N.M. 310", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740857 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0310-01" ] }, { "cite": "65 N.M. 301", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848344 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0301-01" ] }, { "cite": "77 N.M. 200", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806471 ], "weight": 5, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0200-01" ] }, { "cite": "71 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347864 ], "weight": 4, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0221-01" ] } ], "analysis": { "cardinality": 695, "char_count": 15301, "ocr_confidence": 0.667, "pagerank": { "raw": 1.5265823961150253e-07, "percentile": 0.6703176517240966 }, "sha256": "775c72d4968e7c5e37385823102f78a20e57ccc40c129054cefd88a5261b1163", "simhash": "1:2ae147371def9e7e", "word_count": 2475 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MOISE and COMPTON, JJ., concur." ], "parties": [ "Morgan T. MORRIS, Jr., Plaintiff-Appellee, v. B. F. ROGERS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge, Court of Appeals.\nDefendant\u2019s appeal attacks the damage award in this personal injury litigation. The issues are (1) aggravation of a preexisting condition, (2) permanent injury and (3), medical bills.\nAggravation of a pre-existing condition.\nThe litigation resulted from an accident involving two pick-up trucks. Prior to the accident plaintiff had experienced five cervical injuries. Four cervical vertebral interspaces had been fused \u2014 C3-4, C4 \u2014 5, C5-6 and C6-7. Of the four, we are concerned only with C6-7. There was a nonunion of the fusion at this level. Cervical level C2-3 had not been treated prior to the accident. However, the only medical witness (plaintiff\u2019s treating physician) was of the opinion: (a) that the C2-3 level had \u201csome degree\u201d of trauma as a result of the prior injuries and (b) that there was \u201c * * * some deterioration in progress. * * * \u201d at this level.\nAfter the accident, the doctor fused the C2-3 level and re-fused the C6-7 level. He was of the opinion that the accident was the cause of the condition that required surgery at these two levels. See Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); compare Martin v. Darwin, 77 N.M. 200, 420 P.2d 782 (1966).\nDefendant contends the trial court awarded damages for aggravation of the pre-existing condition at C2-3 and C6-7. We agree that the finding of damages was, in part, based on aggravation of the preexisting condition. In testifying as to these levels, the doctor referred to \u201c * * * injuries that recurred by aggravation. * * *\u201d\nWhen asked to state the extent of the aggravation, the doctor said: \u201cI can\u2019t specifically state how much. * * * \u201d The doctor agreed that the condition resulting in surgery at the two levels could have occurred without the accident; that he could not put a date on the injury from his clinical findings alone. His opinion that the accident was the producing cause of the injury was based on the history received from the patient.\nOn the basis of this testimony, defendant contends the extent of the aggravation was not established with reasonable certainty. Because of this asserted failure of proof, he claims the finding of damages is erroneous. Absent such proof, he claims the damage award is based on a mistake of law.\nDefendant is only liable for the injuries he inflicted on plaintiff. Where the injury is an aggravation of a pre-existing condition, plaintiff must prove the extent of the aggravation because the aggravation is the injury that has been inflicted. Martin v. Darwin, supra. Further, the extent of the aggravation must be established with reasonable certainty. See Woods v. Brumlop, supra. Although the injury (the aggravation) must be reasonably certain, \u201cUncertainty as to the amount of damages one may be entitled to receive will not prevent a recovery, * * Hebenstreit v. Atchison, Topeka & Sante Fe Ry., 65 N.M. 301, 336 P.2d 1057 (1959).\nThe extent of the aggravation can be established by testimony that the pre-existing condition has been aggravated by a stated percentage amount. Compare Maisel v. Wholesome Dairy, Inc., 79 N.M. 310, 442 P.2d 800 (Ct.App.1968). This, however, is not the only way the extent of the aggravation can be proved. Comparative testimony can be used to establish the extent of the aggravation. Martin v. Darwin, supra.\nWhile the extent of the aggravation in this case is not stated as a percentage extent, there is comparative testimony showing the extent of the aggravation.\nPlaintiff \u201c * * * was unable to flex or extend the cervical spine so far as he had been able to prior to this accident. * *\nPrior to the accident the doctor had not recommended further surgery, but had told plaintiff that if his pain persisted, and was intolerable, surgery might be necessary. On plaintiff\u2019s last visit to the doctor, approximately five weeks before the accident, the acute pain had disappeared although plaintiff continued to have radiating pain from the C6-7 non-union. After the accident \u201c* * * gradually the pain in his neck got more severe. * * *\u201d Fusion of the C2-3 and C6-7 levels was \u201c* * * necessary to interrupt the patient\u2019s discomfort.\u201d\nThe pre-existing non-union at C6-7 was a non-union of the bone. There was a \u201cfibrous union.\u201d This type of itnion is \u201cquite workable\u201d and allows a person to get by \u201creasonably well\u201d if the heavier type of labor is' avoided. The doctor testified that plaintiff could do heavy lifting prior to the accident; that he could do \u201c* * *\u2019 what ever lifting thkt he wanted to engage in-.' * * *\u201d Plaintiff had been released to \u201cpractically unlimited activities.\u201d' He had a job demonstrating arc welders. Apart from the necessity of moving 150 pound machines, from time to time, the job was light work. Plaintiff experienced no pain as a result of this work. After the accident, plaintiff\u2019s symptoms (pain, severe headaches) progressively increased until he was unable to do work of any type.\nThe extent of the injury inflicted by defendant (the aggravation) is established by the foregoing comparative testimony. It is: a decrease of flexion and extension of the cervical spine and an increase in the severity of neck pain which resulted in an inability to work and which necessitated surgery.\nPermanent injury.\nThe trial court found that plaintiff suffered permanent injury as a result of defendant\u2019s negligence. This finding is error, it is not supported by substantial evidence. Herrell v. Piner, 78 N.M. 664, 437 P.2d 125 (1968).\nOur views are: (a) the fusion, in itself, does not establish a permanent injury, (b) the evidence does not establish that plaintiff\u2019s condition at trial was a result of the accident and (c) while the evidence shows that plaintiff suffered injuries as a result of the accident, the evidence does not show that these injuries were permanent. In reaching these views we have considered all the evidence, medical and non-medical. Accordingly, we do not reach the contention as to the type of evidence required to show a permanent injury-\na. The fusion, in itself, does not establish a permanent injury.\nPlaintiff suffered pain at C2-3 and C6-7 as a result of the accident. The doctor testified that surgery was necessary to 'interrupt that pain.\nThere was also a \u201cgood fusion\u201d at C2-3. This C2-3 fusion was a permanent fixation; a permanent condition. See 1A Gordy-Gray, Attorneys\u2019 Textbook of Medicine (3rd ed.) para. 13.08, at 13-22 (1968). This permanent condition, however, does not establish a permanent injury; there must be more. Proof of \u201cpermanent injury\u201d means proof of \u201cpermanent disability\u201d or \u201cpermanent damage.\u201d Garcia v. Southern Pacific Co., 79 N.M. 269, 442 P.2d 581 (1968).\nLawyers\u2019 Medical Encyclopedia, \u00a7\u00a7 7.20 and 7.38 (Rev.Vol. 1, 1966) indicates some permanent impairment results from a fusion. However, 1A Gordy-Gray, Attorneys\u2019 Textbook of Medicine (3rd ed.) para. 13.09, at 13-27 (1968) and 1A Gordy-Gray, Attorneys\u2019 Textbook of Medicine (3rd ed.) para. 10A.40, at 10A-17 (1961) indicates there may be no residual disability. With this variance, we cannot hold there is either permanent disability or permanent damage solely on the basis that a fusion has been performed.\nb. The evidence does not establish that plaintiff\u2019s condition at trial was a result of the accident.\nThe doctor was not asked whether plaintiff suffered any permanent disability or permanent damage as a result of the injuries at C2-3 and C6-7 or as a result of the surgery at those two levels. The doctor was not asked whether plaintiff\u2019s condition at trial resulted from the accident.\nWe have previously referred to the doctor\u2019s testimony concerning plaintiff\u2019s ability to lift and to engage in \u201cpractically unlimited activities\u201d prior to the accident. At the trial the doctor testified that plainiff was incapable of performing manual labor, that he should not \u201c * * * do heavy labor, lifting, or movement of his arms above shoulder height.\u201d The elapsed time from accident to trial is approximately two years and two months. Because of this elapsed time, plaintiff asserts the trial court could infer that he has a permanent injury as a result of the accident. See Johnson v. City of Santa Fe, 35 N.M. 77, 290 P. 793 (1930); City of Phoenix v. Mullen, 65 Ariz. 83, 174 P.2d 422 (1946); Southern Ry. v. Lambert, 106 Ga.App. 691, 128 S.E.2d 87 (1962); American Marietta Co. v. Griffin, D.C.App., 203 A.2d 710 (1964); Carpenter v. Nelson, 257 Minn. 424, 101 N.W.2d 918 (1960).\nSuch an inference cannot be drawn unless there is evidence that plaintiff\u2019s disability, at the time of trial, resulted from the accident. Defendant is only liable for the injuries he inflicted. Martin v. Darwin, supra. Even if plaintiff\u2019s disability is permanent, there must be evidence that defendant caused that disability.\nWe review the evidence. After the surgery was performed, plaintiff made an uneventful recovery \u201c* * * up to July 1 [1963], * * *\u201d At that time he was allowed to do light work but was restricted to 25 pounds of lifting. \u201c* * * [H]is symptoms were still subsiding. Headaches had completely disappeared. * * *\u201d Although the grafts could still be discerned, C2-3 and C6-7 were \u201chealing well.\u201d\nThe doctor did not see plaintiff again until July 30, 1964; thirteen months later. At that time he was doing \u201ccustom farming\u201d which was \u201cheavy work.\u201d \u201c* * * [EJxcept for riding over rough fields with heavy equipment [plaintiff] was getting along quite well and did experience some headache and neck pain, pain between the shoulders as a result of this jostling and jarring he was experiencing.\u201d At this time, the doctor felt that plaintiff \u201c* * * was re-establishing his non-union at C6-7 level, which we attributed to the heavy work he was doing, and which as long as the symptoms remained subsided we felt there was sufficient scar tissue holding this thing solid that he had achieved the initial purpose of the graft, namely producing an asymptomatic condition to the neck.\u201d\nIn November 1964, the re-occurring non-union of C6-7 was more evident. The doctor felt \u201cagain\u201d that the non-union resulted from plaintiff\u2019s activity as a farm laborer.\nThe doctor\u2019s last examination was April 8, 1965. Plaintiff had been driving a tanker over rough ground hauling waste water. In this activity, he experienced pain in the neck and between the shoulders, headaches and difficulty in sleeping. By not doing heavy lifting or experiencing severe jolting, however, plaintiff got along fairly well.\nThe doctor\u2019s testimony establishes that subsequent to surgery plaintiff was asymptomatic for a time; that pain returned with activities such as driving farm equipment or tankers. At the trial which began April 30, 1965, (the record does not disclose why the case was thereafter held under advisement in the district court for more than three years) the doctor testified as to plaintiff\u2019s inability to do heavy work, lifting or movements of the arms above the shoulders. He also testified that plaintiff\u2019s \u201cgreatest difficulty\u201d arose in the cervical spine. In-addition, the doctor testified:\n\u201cQ. Let me just ask you this: With reference to the heavy lifting today, is that mainly attributable to the C6-7 condition ?\n\u201cA. Yes, sir, that is the main reason he is being limited to that.\n\u201cQ. Which you related to the activities on the farm down there.\n\u201cA. That is true.\u201d\nThe doctor\u2019s testimony does not establish that plaintiff\u2019s condition at trial (a limitation of physical activity) resulted from the accident.\nThe non-medical testimony shows that subsequent to the surgery and up to the \u201ccustom farming\u201d period, plaintiff worked at various jobs; that the heavier the job the greater his difficulty because of pain. At times the pain caused him to \u201cblackout.\u201d\nPlaintiff agreed that the \u201ccustom farming\u201d was strenuous work. After this terminated, plaintiff worked in a dental laboratory. There he experienced pain if he sat still any length of time. Plis worst (and last) \u201cblackout\u201d occurred while employed at the dental laboratory after lifting heavy objects. Plaintiff\u2019s own testimony places him in worse condition at time of trial than did his doctor. According to plaintiff, he suffers severe neck pain, headaches and sleeplessness on \u201c* * * any type of lifting or physical exertion; * * *\u201d Other witnesses tend to corroborate plaintiff\u2019s testimony.\nEven if non-medical testimony may establish the cause of plaintiff\u2019s condition at trial (see Woods v. Brumlop, supra), the non-medical testimony in this case does not show that the condition at trial resulted from the accident. Rather, it shows increased pain and inability to work subsequent to the custom farming. It corroborates the medical opinion that the \u201cmain reason\u201d for the limitation on plaintiff\u2019s activities at trial was the farm work. Compare Gammon v. Ebasco Corp., 74 N. M. 789, 399 P.2d 279 (1965).\nc. While the evidence shows that plaintiff suffered injuries as a result of the accident, the evidence does not show that these injuries were permanent.\nPrior to the farm work, there is evidence that plaintiff suffered injury as a result of the accident. This evidence has been referred to previously in the opinion. The limited medical evidence indicates an asymptomatic condition and that both cervical levels were \u201chealing well.\u201d The non-medical evidence shows pain on doing heavier type of work. None of this evidence shows disability or damage extending into the future\u2014that is, a permanent injury prior to the farm work. Compare Garcia v. Southern Pacific Co., supra.\nThe trial court erred in finding that plaintiff suffered permanent injury as a result of the accident.\nMedical bills.\nA portion of the doctor\u2019s bill and a portion of the bill for prescriptions was incurred as a result of the re-occurrence of non-union at C6-7. These portions resulted from plaintiff\u2019s farm activities and were not reasonably necessary as a result of the accident. Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966).\nDisposition of the case.\nDefendant does not attack the finding of negligence. Nor does he challenge the findings that plaintiff suffered pain and discomfort and an impaired earning ability as a result of the accident. Defendant did challenge the finding as to the amount of wages lost, but only on the basis that the extent of the aggravation had not been proved. We have held against defendant .on that point.\nThe successful challenge is to an award \u00abof damages for permanent injury and to rthe portion of two medical bills not in\u00abcurred as a result of the accident.\nThe judgment is reversed. The cause is remanded with instructions to make new findings as to plaintiff\u2019s damages, excluding the portion of the medical bills improperly admitted and excluding any damages for permanent injury and to enter a new judgment consistent with the findings. The new findings are to be made on the basis of the record, without taking additional evidence. Compare Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App.1968). Defendant is to recover his costs.\nIt is so ordered.\nMOISE and COMPTON, JJ., concur.", "type": "majority", "author": "WOOD, Judge, Court of Appeals." } ], "attorneys": [ "Iden & Johnson, Richard G. Cooper, Albuquerque, for appellant.", "John Hogan Stewart, Gallagher & Ruud, Albuquerque, for appellee." ], "corrections": "", "head_matter": "456 P.2d 863\nMorgan T. MORRIS, Jr., Plaintiff-Appellee, v. B. F. ROGERS, Defendant-Appellant.\nNo. 8774.\nSupreme Court of New Mexico.\nJuly 7, 1969.\nIden & Johnson, Richard G. Cooper, Albuquerque, for appellant.\nJohn Hogan Stewart, Gallagher & Ruud, Albuquerque, for appellee." }, "file_name": "0389-01", "first_page_order": 445, "last_page_order": 450 }