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Kelly v. Borwegen

Decided: June 1, 1967.

MARION J. KELLY AND ROBERT J. KELLY, HER HUSBAND, AND MARION J. BALDESWEILER, PLAINTIFFS-RESPONDENTS, AND ROBERTA J. DILLON, ET AL., PLAINTIFFS,
v.
R. C. BORWEGEN, DEFENDANT, AND PETER J. HOWARTH, DEFENDANT-APPELLANT



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

In this automobile accident case the jury returned a verdict against defendant Howarth of $10,000 in favor of plaintiff Marion J. Kelly and of $1,500 in favor of her husband per quod. Howarth appeals.

Howarth does not dispute the finding of liability. However, he argues that there was no competent and proper basis for the verdict because Mrs. Kelly produced no medical testimony, and the pains and sufferings about which she testified at the trial, more than three years after the accident, were largely subjective. Such injuries, says defendant, may not be submitted to a jury for evaluation without some medical testimony bearing on the issue of causation. We agree and reverse for a new trial as to damages only.

The accident occurred when a vehicle driven by defendant Howarth collided with an auto in which Mrs. Kelly was a passenger. Mrs. Kelly testified that on the date of the accident, July 19, 1963, she was hospitalized for three hours while X-rays (which admittedly were negative) were taken; on the following Monday she was given an injection by her physician who also fitted her for a rib brace; two weeks later the doctor prescribed another brace, which she wore for nine months; thereafter she visited the doctor on about 40 occasions over a seven-month period, at which time she received injections and massages, and at the time of the trial in September 1966 she still suffered pain and had difficulty in sleeping, walking, climbing steps and breathing.

Mrs. Kelly stated:

"* * * the difficulty I still have is I can't walk more than probably six or seven blocks, and I do have quite a bad pain in the back or I can't climb too many stairs. I still have that pain and at times I still have difficulty in breathing."

Mr. Kelly confirmed the testimony of his wife, but her physician, who was unavailable at the time of trial, did not testify, and no expert testimony was introduced to show causation.

Plaintiffs argue that medical testimony is not essential, citing Wilson v. Coca-Cola Bottling Co., 3 N.J. Super. 102 (App. Div. 1949). In Wilson plaintiff became ill from foreign substances in a bottle of Coca-Cola. Unlike the case at bar, Wilson made no claim of permanent injuries. She merely alleged that she was confined to bed for five days and was out of work for about two and a half weeks. We held that the nature of her injuries and her testimony as to the effects which allegedly followed within that brief period were "* * * sufficient to establish a prima facie case on which the jury might, as it evidently did, infer that the damages suffered by the plaintiff were proximately caused by the negligence of the defendant. Rudolph v. Coca-Cola Bottling Co., 4 N.J. Misc. 318

(Sup. Ct. 1926); Piscatore v. La Rosa & Sons, 121 N.J.L. 288 (Sup. Ct. 1938)." (at p. 104)

On the other hand, in Migliozzi v. Safeway Stores, Inc., 51 N.J. Super. 313 (App. Div. 1958), the lay testimony was that the infant plaintiff did not "eat right" and was nauseous for 14 months after drinking the foreign substance. Plaintiff's doctor did not testify. We held that although the trier of facts could infer that the foreign substance caused the distress which plaintiff suffered immediately after consuming the drink, the evidence did not permit

"* * * the inference that the subsequent gastric disturbances, testified to by no one but the mother, were caused by the drink * * * What the doctor found, what he treated the child for, how, and for how long, and the relation between the drink and her ailments, ...


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