{ "id": 5331089, "name": "Arnulfo ALVILLAR, Plaintiff-Appellee, v. James T. HATFIELD and Elizabeth M. Yoder, Defendants-Appellants", "name_abbreviation": "Alvillar v. Hatfield", "decision_date": "1971-04-23", "docket_number": "No. 618", "first_page": "565", "last_page": "569", "citations": [ { "type": "official", "cite": "82 N.M. 565" }, { "type": "parallel", "cite": "484 P.2d 1275" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "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": "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": "80 N.M. 573", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356210 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0573-01" ] }, { "cite": "81 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369047 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0300-01" ] }, { "cite": "80 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362583 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0345-01" ] }, { "cite": "81 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366146 ], "weight": 4, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0217-01" ] }, { "cite": "71 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347864 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0221-01" ] }, { "cite": "77 N.M. 200", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806471 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0200-01" ] }, { "cite": "80 N.M. 389", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359995 ], "weight": 8, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0389-01" ] }, { "cite": "79 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744035 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0789-01" ] }, { "cite": "78 N.M. 63", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323082 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0063-01" ] }, { "cite": "61 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318664 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0412-01" ] } ], "analysis": { "cardinality": 532, "char_count": 11825, "ocr_confidence": 0.715, "pagerank": { "raw": 1.5400506084271974e-07, "percentile": 0.6727189500237273 }, "sha256": "c772d48250c04f36dc8516b14cc6cd0228e73c7741ee0278ad0bb20021eb2654", "simhash": "1:2cf9d723796915f6", "word_count": 1864 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concur." ], "parties": [ "Arnulfo ALVILLAR, Plaintiff-Appellee, v. James T. HATFIELD and Elizabeth M. Yoder, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nIn this non-jury automobile accident case, defendants admitted liability to plaintiff \u201cfor injuries sustained.\u201d Defendants\u2019 appeal is directed to damage questions. They claim: (1) the doctor\u2019s testimony should have been stricken; (2) the cause of plaintiff\u2019s condition at the time of trial was not established; (3) the extent of an aggravation of a pre-existing condition was not proved; and (4) the damage award is not supported by substantial evidence and is excessive as a matter of law.\nMedical testimony.\nThe only medical testimony offered at trial was that of a doctor called by plaintiff. The doctor testified that in connection with his examination of plaintiff he had the benefit of the reports of two other doctors and two x-ray reports. When the doctor started to testify about the x-ray reports, defendants\u2019 objection was sustained. The doctor then related the complaints he had received from plaintiff and the objective findings from his examination. Subsequently, the doctor gave his \u201cconclusion.\u201d This, according to the doctor, was based \u201c * * * solely on my knowledge of Pete Alvillar as a patient since 1950.\u201d The accident occurred in February, 1969. The doctor\u2019s examination for purposes of trial was the day before the trial, which began May 26, 1970. The doctor testified he had treated plaintiff \u201cabout every three to six months\u201d since 1950.\nOn his direct examination, the doctor testified that plaintiff\u2019s condition at trial did not necessarily involve an arthritic condition but that was \u201cone of the things\u201d to be considered. On cross-examination he testified he couldn\u2019t be sure, from his physical examination, that plaintiff\u2019s present condition was osteo-arthritis or sprain. As to which of these two items, he relied on the x-ray reports. He stated that \u201cpart\u201d of his conclusion was based on his acceptance of the x-ray reports as quoted in the reports of two other doctors.\nDefendants moved \u201c * * * that the entire testimony of the Doctor be stricken. * * * \u201d They contend the trial court erred in failing to do so.\nPlaintiff\u2019s complaints to the doctor, and the history the doctor obtained from plaintiff, were admissible testimony. N. M.U.J.I. 15.2; Waldroop v. Driver-Miller Plumbing & Heating Corp, 61 N.M. 412, 301 P.2d 521 (1956). The doctor\u2019s objective findings, based on his examination of plaintiff, were admissible testimony.\nDefendants\u2019 objection to the doctor\u2019s testimony went to the answers, elicited on cross-examination, that the doctor\u2019s conclusions were based \u201cin part\u201d on reports not in evidence. These answers did no more, however, than contradict direct examination testimony that the conclusions were based \u201csolely\u201d on the doctor\u2019s knowledge of plaintiff. The fact that cross-examination answers indicated the doctor\u2019s conclusions were based on inadmissible evidence, did not require that the conclusions on direct examination be stricken. Where, as here, there were contradictions in the testimony of the witness, the trial court was required to reconcile the contradictions and say which was the truth. Hughes v. Walker, 78 N.M. 63, 428 P.2d 37 (1967); compare Lucero v. Los Alamos Constructors, Inc, 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).\nSince the doctor gave admissible testimony, the trial court properly refused to strike the doctor\u2019s \u201centire testimony.\u201d\nThe cause of plaintiffs present condition.\nDefendants are only liable for the injuries they inflicted on plaintiff. Morris v. Rogers, 80 N.M. 389, 456 P.2d 863 (1969). We proceed on the basis that the cause of plaintiff\u2019s condition, at the time of trial, was required to be established by medical testimony. See Martin v. Darwin, 77 N.M. 200, 420 P.2d 782 (1966); Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962).\nDefendants contend all of the doctor\u2019s testimony should have been stricken and, therefore, there is no medical evidence of causation. We have held that all of the doctor\u2019s testimony could not have been properly stricken.\nDefendants also contend there is no medical evidence of causation if consideration is limited to portions of the doctor\u2019s testimony which was admissible. We disagree. The doctor gave his opinion that plaintiff\u2019s condition at trial \u201ccame from\u201d the automobile accident. This opinion was based on the history received from plaintiff and the \u201cfindings\u201d when the doctor examined the plaintiff. The opinion was on the basis of a reasonable medical probability. This is substantial medical evidence of causation. Compare Morris v. Rogers, supra.\nAggravation of a pre-existing condition.\nMorris v. Rogers, supra, states:\n\u201c * * * 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. * * * Further, the extent of the aggravation must be established with reasonable certainty. * * * \u201d\nThe doctor\u2019s testimony, undisputed, is that plaintiff complained of pain in both of his arms in March, 1963, and that the doctor diagnosed this as a \u201cvery mild\u201d arthritic condition. The doctor characterized this condition as \u201c[v]ery slowly progressive.\u201d The doctor wasn\u2019t sure, from his physical examination, whether plaintiff\u2019s condition at trial was osteo-arthritis or sprain. Nevertheless, his opinion was that plaintiff\u2019s prior arthritic condition had been aggravated.\nDefendants contend the extent of the aggravation was not proved. We disagree.\nOne of the ways of proving the extent of the aggravation is by comparative testimony. Morris v. Rogers, supra; Martin v. Darwin, supra. The doctor\u2019s testimony shows the pre-existing condition to consist of complaints of pain in both arms diagnosed as a mild, slowly progressive arthritic condition.\nPlaintiff\u2019s present complaints were of \u201cconstant pain in his neck since the accident,\u201d weakness of grip in the right arm with inability to lift things he formerly could, marked headaches \u201csince the accident,\u201d numbness in the right arm (only) \u201call the time,\u201d and \u201cat times\u201d severe pain, and a \u201cconstant dizzy feeling.\u201d These changes in the complaints are corroborated by non-medical witnesses. Compare Martin v. Darwin, supra.\nThe doctor\u2019s findings were: marked tenderness and spasm of the muscles and spinous processes of the cervical vertebrae which was most apparent in the mid-cervical area; marked weakness in the grip of the right hand as compared to the left hand; decreased sensation to light touch over the right hand; marked pain on flexion and extension of the neck; extremes of rotation of the neck caused \u201csevere pain\u201d and increased numbness in the arm; on depression of the right shoulder there was aggravation of the numbness and pain in the entire right arm. The doctor testified these findings showed tenderness and disarrangement of the nerve roots of the right neck; that this was consistent with the tenderness he found at the base of the skull, in the scapula and the thoracic and lumbar regions of the spine.\nThe doctor concluded \u201cthere has been a marked aggravation of the symptoms.\u201d While the previous arthritic condition was slowly progressive, there had been a \u201cmarked worsening;\u201d \u201c[tjhere was something that made it get so markedly worse.\u201d The doctor\u2019s opinion was this marked change resulted from the automobile accident.\nThe comparative testimony, which is substantial and uncontradicted, shows the extent of the aggravation of the pre-existing condition.\nUnder this point, defendants also complain about the trial court\u2019s findings. Because the evidence of the pre-existing arthritic condition was undisputed, they assert the trial court was required to find this pre-existing condition existed and also find the extent of the aggravation of this pre-existing condition. This issue does not involve the proof before the trial court; it involves the form of the findings made by the trial court.\nIf requested, the trial court was required to find the ultimate facts necessary to determine the issues. Section 21-1-1(52) (B) (a) (6), N.M.S.A.1953 (Repl.Vol. 4) ; Rutledge v. Johnson, 81 N.M. 217, 465 P.2d 274 (1970). An ultimate fact in this case would be that plaintiff was injured as a result of the collision. Such a finding was made.\nBecause this case involves the aggravation of a pre-existing condition, another ultimate fact would be the extent of the aggravation since that is the injury inflicted by defendants. Compare Rutledge v. Johnson, supra. No such finding was made. However, neither side requested a finding as to the extent of the aggravation. Defendants\u2019 requested findings, which were refused, went only to evidentiary matters or the asserted failure to prove the extent of the aggravation. The trial court did not err in refusing to make evidentiary findings. McCleskey v. N. C. Ribble Company, 80 N.M. 345, 455 P.2d 849 (Ct.App.1969). Nor did it err in refusing to find the extent of the aggravation had not been proved since the undisputed comparative testimony established the extent of the injury.\nSince the trial court was not requested to find the extent of the aggravation, defendants are not in a position to complain of the absence of such a finding. Nosker v. Western Farm Bureau Mutual Ins. Co., 81 N.M. 300, 466 P.2d 866 (1970).\nThe damage aivard.\nThe trial court awarded $15,000.00 damages.\nDefendants assert the award is not supported by substantial evidence and is excessive as a matter of law. In support of this contention they review the evidence most favorable to their position. This, of course, is incorrect. The evidence is to be reviewed in the light most favorable to support the damage award. Rutledge v. Johnson, supra; Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (Ct.App.1969); Maisel v. Wholesome Dairy, Inc., 79 N.M. 310, 442 P.2d 800 (Ct.App.1968).\nThe trial court found that the injury plaintiff suffered in the accident was \u201cpermanent.\u201d Defendants assert, and requested a finding, that there is no evidence that plaintiff\u2019s aggravated condition is permanent. We agree, since permanent injury means permanent disability or permanent damage. Morris v. Rogers, supra; Garcia v. Southern Pacific Company, 79 N.M. 269, 442 P.2d 581 (1968). There is no evidence that plaintiff suffered either permanent disability or permanent damage as a result of the collision.\nThe doctor was not asked about permanent injury. The doctor testified that plaintiff \u201cwill get worse in time,\u201d but the doctor was not asked about the length of time involved or about any future worsened condition. The trial court awarded damages for \u201cinjuries, disability, pain and suffering.\u201d We cannot determine from the record whether the award for \u201cinjuries\u201d included damages based on the erroneous finding of permanent injury.\nThe evidence of plaintiff\u2019s physical symptoms caused by the accident, of the change in his ability to work, and of his pain, is substantial and supports the damage award. However, no claim is made that these items show a permanent injury. See Morris v. Rogers, supra. Because we cannot determine whether a portion of the damage award is based on the erroneous finding of \u201cpermanent injury,\u201d we cannot affirm the damage award.\nThe judgment is reversed. The cause is remanded with instructions to make new findings as to plaintiff\u2019s damages, excluding any damages for a \u201cpermanent injury,\u201d and 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 Morris v. Rogers, supra.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "J. Wayne Woodbury, Silver City, for defendants-appellants.", "William S. Martin, Jr., C. N. Morris, Silver City, for plaintiff-appellee." ], "corrections": "", "head_matter": "484 P.2d 1275\nArnulfo ALVILLAR, Plaintiff-Appellee, v. James T. HATFIELD and Elizabeth M. Yoder, Defendants-Appellants.\nNo. 618.\nCourt of Appeals of New Mexico.\nApril 23, 1971.\nJ. Wayne Woodbury, Silver City, for defendants-appellants.\nWilliam S. Martin, Jr., C. N. Morris, Silver City, for plaintiff-appellee." }, "file_name": "0565-01", "first_page_order": 621, "last_page_order": 625 }