Alamo v. Del Rosario

• Decision Date: 06 June 1938
• Docket Number: No. 7006.,7006.
• Citation: 98 F.2d 328
• Parties: ALAMO v. DEL ROSARIO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

98 F.2d 328 (1938)

ALAMO v. DEL ROSARIO.

No. 7006.

United States Court of Appeals for the District of Columbia.

Decided June 6, 1938.

Cornelius H. Doherty, Henry I. Quinn, and William T. Hannan, all of Washington, D. C., for appellants.

Dorsey K. Offutt and Eugenio M. Fonbuena, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

EDGERTON, Associate Justice.

This is an appeal by the defendants from a judgment for the plaintiff in an action for personal injuries. Plaintiff Del Rosario was a guest in an automobile driven by defendant Alamo when a bus of defendant Nevin Midland Lines collided with it and plaintiff was seriously injured. Several eyewitnesses testified. It is not disputed that there was evidence of negligence on the part of both Alamo and the bus driver. There was evidence that Alamo turned to the left and started across the street in the path of the closely approaching bus. But there was also evidence to the contrary, to the effect that Alamo, after turning to the left with a view to crossing the street, brought his car to a full stop near the middle of the street, while the bus was still a block away, and did not move again. Plaintiff himself was one of the witnesses who testified to this effect. On cross-examination plaintiff testified that he never authorized any one to file suit against Alamo, but the court sustained an objection by plaintiff's counsel to this testimony. Defendant Alamo appeals on the grounds that (1) he should have been permitted to examine plaintiff as to whether he had authorized suit; (2) the court improperly permitted the jury to award damages for future disability and suffering; and (3) he was entitled to a directed verdict because Del Rosario's own testimony showed that there was no negligence on Alamo's part. Appellant corporation appeals on the second ground alone.

(1) There was no error in excluding Del Rosario's testimony that he had not authorized suit against Alamo. That, as the court said, was not a matter for the jury. Counsel's authority can be questioned before trial, by a motion that he be required to show it. Pueblo of Santa Rosa v. Fall, 56 App.D.C. 259, 261, 262, 12 F.2d 332. A court may, in its discretion, require him to do so at any stage of a case. Id., 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658. It appellant Alamo, during the trial, had moved that the case be dismissed unless appellee's counsel showed his authority, the question would have arisen what circumstances, if any, excused appellant's failure to make such a motion earlier. As he made no such motion at any time, the question does not arise.

(2) Medical testimony to the permanent impairment of plaintiff's knee was introduced. Whether it was struck out is not quite clear from the record. If so, it does not follow that there was no evidence before the jury to support a finding of permanence. Plaintiff lost consciousness in the accident. He suffered a small laceration on the back of the scalp, a lateral dislocation of the right knee joint, a fracture of the tibial spines, and a comminuted fracture of the fibula, i. e., several lines of fracture as distinguished from a single clean break. A few weeks after the accident an X-ray showed that the joint relationship was perfect, the position good and the alignment excellent. Yet three months after the accident he could not do his work because he could not lift anything heavy; and at the time of the trial, almost two years after the accident, he was still unable to do his former work, and walked lame, whereas before the accident he walked straight. In the absence of any medical testimony that the injuries were temporary, this was enough to take the question of their permanence to the jury. In Washington Railway & Electric Company v. Cullember, 39 App.D.C. 316, 320, 326, we sustained the submission of permanent impairment of hearing, although the only evidence on the point was that the plaintiff's hearing was still impaired at the time of the trial, two years after the accident. In Washington Utilities Company v. Wadley, 44 App. D.C. 176, 181, although a physician testified that "a sprain may last a lifetime," there was no prediction that the plaintiff's would. But his pain continued "at times" two years after the accident, and this court sustained submission to the jury of the question of permanence. Cases in other jurisdictions also have permitted an inference of permanence to be drawn, without expert prognosis, from the nature of the injury and its continuance to the time of the trial, and this although the injury is not visible or tangible. Macon Railway & Light Company v. Streyer, 123 Ga. 279, 51 S.E. 342; Louisville Railway Company v. Casey, 71 S.W. 876, 24 Ky.Law Rep. 1527; Washington B. & A. Electric Railroad Company v. Cross, 142 Md. 500, 121 A. 374; Mischo v. Von Dohren, 126 Neb. 164, 252 N.W. 830. Contra, Horowitz v. Hamburg-American Packet Company, 14 App.Div. 631, 43 N.Y.S. 1156; Louisville & Nashville R. R. Company v. Eaden, 122 Ky. 818, 93 S.W. 7, 6 L.R.A.,N.S., 581. When the bad effects of an injury have continued for years, and there is no expert prediction, laymen may reasonably infer some degree of permanence. That they might reasonably refuse to do so would be less clear. On the other hand, if respectable physicians testify without contradiction that an injury is temporary, reasonable laymen can hardly say that it is permanent. Two cases on which appellants rely are of that sort, and are therefore not in point here. Deneen v. Houghton County Street Railway Company, 150 Mich. 235, 113 N.W. 1126, 13 Ann.Cas. 134; Weiner v. St. Louis Public Service Company, Mo. Sup., 87 S.W.2d 191.

(3) Alamo's negligence, if any, was in making an untimely left turn in the path of an approaching bus. He was not negligent if he stopped in the middle of the street, which was wide, while the bus was a block away, and did not move again; and according to the testimony of appellee himself, this is what happened. There was conflicting evidence on the point. Alamo urges that appellee's testimony should conclude him.

A stipulation, or judicial admission, "conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted." Wigmore, Evidence, § 2588. But, "It is of the nature of an admission, plainly, that it be by intention an act of waiver, relating to the opponent's proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose; in particular, a statement made for the purpose of giving testimony is not a judicial admission." Id., § 2594; cf. Supp.1934, § 2594a. Mere testimony, though it come from a party, is not "by intention an act of waiver." A witness is not selling something or giving something away, but simply reporting something. "The testimony of parties to a suit must be regarded as evidence, not as facts admitted." Matthews v. Story, 54 Ind. 417, 419. Accordingly, plaintiffs have been allowed to recover for personal injuries on testimony which contradicted their own. In Hill v. West End Street Railway Company, 158 Mass. 458, 33 N.E. 582, the plaintiff testified that a street car had stopped before it injured her by a premature start; she was allowed to recover on the theory that it had merely slowed down. In Whiteacre v. Boston Elevated Railway Company, 241 Mass. 163, 134 N.E. 640, a plaintiff who had testified that she was thrown by the stopping of a car was allowed to go to the jury on the basis that she was thrown by its starting. In Kanopka v. Kanopka, 113 Conn. 30, 154 A. 144, 80 A.L.R. 619, plaintiff's testimony, which was contradicted, indicated that she was guilty of contributory negligence in not taking advantage of an opportunity to escape injury. The court conceded that a party's testimony may sometimes amount to a conclusive admission, but permitted recovery on the strength of the other evidence because plaintiff's credibility was affected by her inability to speak English and the injury to her head suffered in the...