233 A.2d 126 (Me. 1967), Steeves v. Irwin

Citation:233 A.2d 126
Opinion Judge:DUFRESNE,
Party Name:Arthur J. STEEVES v. Carl W. IRWIN, M.D.
Attorney:Neil D. MacKerron, Esq., Bridgton, for appellant. Robert W. O'Connor, Augusta, for appellee.
Case Date:September 15, 1967
Court:Supreme Judicial Court of Maine

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233 A.2d 126 (Me. 1967)



Carl W. IRWIN, M.D.

Supreme Judicial Court of Maine.

September 15, 1967

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[Copyrighted Material Omitted]

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Neil D. MacKerron, Esq., Bridgton, for appellant.

Robert W. O'Connor, Augusta, for appellee.


DUFRESNE, Justice.

Judgment for the defendant against the plaintiff was entered on August 2, 1965. This entry followed prior decree of a Justice of the Superior Court granting defendant's motion for summary judgment. The plaintiff appeals.

The parties agree that the plaintiff on or about October 11, 1961, while employed by the Great Northern Paper Company at Millinocket, Maine, sustained personal injuries involving his back. On or about May 1, 1962, he was examined by the defendant neuro-surgeon, who then and thereafter subjected the plaintiff to x-ray, myelogram and other neurological tests. The defendant's diagnosis of plaintiff's ailment was that the plaintiff suffered from a herniated or ruptured disc at the lumbosacral interspace, and/or at the lumbar four (4) and five (5) interspace. On surgical intervention May 23, 1962 the defendant found no herniation of disc or other abnormality other than arthritis of the lumbar vertebrae. He examined plaintiff again on June 26 and September 17, 1962, when on both occasions he advised return to moderate work.

The plaintiff sued the defendant doctor for malpractice basing his cause of action upon defendant's alleged negligent failure to find and discover herniation and abnormalities of the lumbar vertebrae other than arthritis and upon the doctor's continued negligent failure thereafter to correctly diagnose and properly render medical service or treatment to plaintiff on account of his ailment. The defendant in his answer denied any negligent conduct on his part. By motion to amend, however, he later sought to avoid plaintiff's action through the following supplemental affirmative defenses:

(Paragraph 10) 'The plaintiff elected to receive the benefits of the Workmen's Compensation Act (Maine, R.S.1944, (sic) Chap. 31) and has received certain money benefits.'

(Paragraph 11) 'The plaintiff has failed to give notice to the employer or compensation carrier as is required by c. 31, sec. 25, Maine, R.S.1954 as amended.'

Defendant's motion to amend was granted by the Court upon agreement of counsel, and the amendment was treated by all as made and allowed. The facts supporting

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these affirmative defenses served as the basis for the Court's favorable action upon defendant's motion for summary judgment.

When the defendant pleaded affirmatively plaintiff's election to accept and his actual receipt of benefits under the Workmen's Compensation Act as a bar to the instant action in malpractice as well as plaintiff's failure to make written demand upon his employer or compensation carrier to pursue remedial action against the defendant as third party at least 30 days prior to the institution of the present suit, such defenses became issues in the case and were subject to proof at trial without further traverse on the plaintiff's part. The issues in that posture of the case were fully joined without further replication, so-called as '(n)o other pleading shall be allowed, except that the court may order a reply to an answer', which was not done in the instant case. Rule 7(a) M.R.C.P.

However, if the defendant believed that his affirmative defenses were based on facts which if admitted to be true would be dispositive of the pending action as a matter of law, he could under Rule 56 M.R.C.P. prior to trial attempt to establish the truth of those facts by motion for summary judgment supported by affidavit verifying such facts. Such is a proper way to explore the existence of controverted issues of fact and when such a motion is made with proper supportive affidavit as provided under this rule, then the adverse party must respond by counter affidavit setting forth specific facts showing that there is a genuine issue for trial. Rule 56(e) M.R.C.P. Indeed, if the adverse party does not respond with proper opposing affidavit, then summary judgment, if appropriate, shall be entered against him. This procedural tactic was pursued by the defendant.

But, in order to legally shore up his motion for summary judgment, defendant's affidavit should have complied with the requirements of Rule 56(e) M.R.C.P. and been made on personal knowledge, setting forth facts admissible in evidence and showing affirmatively that the affiant was competent to testify to the matters stated. In the instant case, the defendant's supportive affidavit did not qualify under any one of the three stated requirements, let alone under all three of them. The affidavit did not state that it was made on personal knowledge and as proof of the facts asserted, it was all hearsay; defendant's attorney who was the affiant was not a competent witness to testify to the facts therein advanced. In an attempt to furnish the required affidavit, defendant's attorney supplied under oath a statement by himself concerning the records in the office of the Industrial Accident Commission regarding plaintiff's petition for award of compensation before said administrative body and he proceeded in narrative form to give the Court the Commission's decision thereon, his own analysis of the proceedings before the Commission made by him from the record and from the transcript of the evidence on file with the Commission, concluding a) 'that the petition for award of compensation and lump-sum settlement of this claim pertained to the same and sole injury treated by Dr. Carl Irwin and this treatment is the basis of this complaint;' b) 'that Arthur Steeves did not give notice to the Great Northern Paper Company, employer, or Employers Liability Insurance Corporation as is required by section 25, Maine R.S.1954, chapter 31 as amended.'

A public record may be made evidentiary by the production of a copy supported by the oath of the person comparing it under common law practice or by a duly attested and authenticated copy, or by a document purporting to be an official publication thereof. See Owen v. Boyle, (1838) 15 Me. 147 at page 152. See also Rule 44(a)(c) M.R.C.P. A mere certificate or affidavit by a magistrate, clerk, recording or certifying officer, or other witness knowledgeable of the record, stating the existence of the record and what it purports to show is never receivable as evidence, unless made so

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by statute. What the record itself factually declares must be made known to the Court by a duly authenticated copy. The Court, before which it is produced, should be in the position inspect the record and decide what it contains and proves. The construction of the record and its import must be left to the Court and not be entrusted to the certifying officer or witness. McGuire v. Sayward, (1842) 22 Me. 230; English v. Sprague, (1851) 33 Me. 440. See also Inhabitants of Jay v. Inhabitants of East Livermore, (1868) 56 Me. 107.

Defendant's affidavit alleging counsel's appraisal of the record before the Industrial Accident Commission and his conclusions therefrom did not contain evidentiary facts admissible at trial to which affiant-counsel could testify and as such legally failed as support for his motion for summary judgment. Union Ins. Soc. of Canton, Ltd. v. William Gluckin & Co., C.A.2d, 1965, 353 F.2d 946.

'When affidavits are offered in support of a motion for summary judgment, they must present admissible evidence, and must not only be made on the personal knowledge of the affiant, but must show that the affiant possesses the knowledge asserted.' Sprague v. Vogt et al., (8th Cir., 1945), 150 F.2d 795; Doza v. American National Insurance Company, (8th Cir., 1963), 314 F.2d 230; Barron and Holtzoff, Federal Practice and Procedure, Vol. 3, § 1237.

The defendant's affidavit must be disregarded for failure to comply with the rules and the defendant's motion for summary judgment would be denied for want of verified factual support if the plaintiff had not served a proper opposing affidavit or furnished other pleadings from which the defendant could receive aid and assistance. The defendant may obtain support for his...

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