Bates v. Newman

• Decision Date: 11 December 1953
• Citation: 121 Cal.App.2d 800,264 P.2d 197
• Court: California Court of Appeals Court of Appeals
• Parties: BATES v. NEWMAN. Civ. 19681.

Page 197

264 P.2d 197

121 Cal.App.2d 800

BATES v. NEWMAN.

Civ. 19681.

District Court of Appeal, Second District, Division 2, California.

Dec. 11, 1953.

Rehearing Denied Dec. 30, 1953.

Hearing Denied Feb. 3, 1954.

Betty & Campbell, Los Angeles, and Freiburghouse & Woodard, South Gate, for appellant.

Reed & Kirtland and Henry E. Kappler, Los Angeles, for respondent.

McCOMB, Justice.

This is an action for damages for personal injuries suffered by plaintiff as a result of the alleged negligence of an osteopathic physician and surgeon in the performance of a circumcision upon plaintiff, and in his care and treatment. The case was tried before the court and jury resulting in a verdict for defendant. There is an appeal from the judgment and a purported appeal from the order denying plaintiff's motion for a new trial.

Facts: Plaintiff, a large man 37 years of age, was first married in 1940, and to his present wife in 1948. During his married life he had enjoyed normal, satisfactory and happy sexual intercourse and sexual relations with the respective wives about twice a week. Prior to May 16, 1950 (the date defendant performed a circumcision upon plaintiff), his penis when relaxed measured three to three and one half inches and during erection it was from six to six and one half inches. In erection it pointed in an upward direction or at an angle which was normal. In April, 1950, plaintiff was having trouble with his organ and consulted defendant who advised him that he should be circumcised. On May 16, 1950, defendant performed the operation. Thereafter plaintiff returned to defendant's office for treatment and on May 23, 1950, when the bandage was removed, plaintiff noticed there was no shaft visible and that only the head was showing when the organ was relaxed. Thereafter whenever plaintiff had an erection he suffered severe pain, and his visible penis measured about one inch including the head, and it pulled the skin of the scrotum up so that it looked like a tepee or tent.

Plaintiff testified that on June 6, 1950, he visited the doctor and told him that he had cut him off short and he did not have any penis. Defendant replied, 'Yes, I think I did take off a little too much. I can fix you up.' He also advised plaintiff he would do a repair operation without any charge. Several operations were performed thereafter, none of which resulted in plaintiff's being returned to the condition which he considered normal.

Questions: First: Did the trial judge commit error in permitting two doctors who had examined plaintiff to express an opinion as to the position of plaintiff's penis and the effect of the abdominal apron upon his ability to have sexual intercourse?

No. Plaintiff does not call our attention to any authority in support of his contention that the doctors' statements were inadmissible. Both doctors had examined plaintiff. No question is raised as to their competency or qualifications. It is clear that from their knowledge of anatomy they were entitled to express their opinion as to the effect of plaintiff's fatty apron on his ability to have intercourse.

A medical expert may testify as to the nature of an injury or condition, the ability or inability of a person to do certain acts. (See cases cited 32 Cal.Jur.2d (1952) Evidence section 534, page 250, note 35; cf. Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 8, 127 P.2d 931 (hearing denied by the Supreme Court).) In considering the weight to be given to the opinion of the doctors, the jury could, of course, consider the testimony of plaintiff and his wife and the fact that neither doctor had seen plaintiff's penis in erection. (Owings v. Industrial Accident Comm., 31 Cal.2d 689, 692, 192 P.2d 1; Gazzera v. City and County of San Francisco, 70 Cal.App.2d 833, 838, 161 P.2d 806.)

Second: Did the trial court err in its ruling upon the evidence of Dr. Sloan?

No. During the course of the trial the following testimony was received:

(A) 'The Court: Pardon me, Doctor, you mean that there were no visible indications there that there had been such an operation?

'The Witness: That is right, our Honor. This may have been a natural formation with this individual and the entire story a fabrication, so far as I am concerned. I could see no evidence that there had been recent surgery done, because I have seen penises in this condition that were born so.

'Mr. Campbell: Just a moment, your Honor. I am going to move that the whole answer be stricken as unresponsive and that the jury be admonished to disregard the answer in toto.

'The Court: The motion is denied.'

The court's ruling was correct. The question called for an answer to a simple question. The first part of the answer was clearly responsive--'That is right, your Honor.' The remainder of the answer may have been unresponsive. However, counsel moved that the whole answer be stricken as unresponsive and that the jury be admonished to disregard the answer in toto. Counsel should have moved to strike only that portion of the answer which was unresponsive. The burden is upon the party objecting to make the proper objection and motion.

Where testimony is admitted, some of which is relevant and competent and is intermingled with that which is improper, a motion should be directed to the portion attacked so that no uncertainty may remain as to the testimony challenged; otherwise a refusal to grant the motion is not error. (Rose v. State of California, 19 Cal.2d 713, 742, 123 P.2d 505.)

(B) 'Q. In other words, did you observe anything about it that would appear to be abnormal in so far as any healing was concerned, assuming that some surgery had previously been done? A. To the point you make, as to the healing?

'Q. Yes. A. Whether anything had been done, I was unable to determine from observation only.'

No objection or motion to strike this testimony was made. Therefore error in the reception of it may not be claimed on appeal.

(C) 'A. * * * At that moment my belief was that he had more shaft of penis available for intercourse than before he ever had anything done to his penis, whenever he had it done, because I created more shaft than, in my humble opinion was ever present by the good Lord's making. I may be wrong.'

No objection or motion to strike this testimony was made. Therefore error may not be predicated in this court upon the reception of the answer.

(D) 'Q. In other words, some do it [perform a circumcision] one way and some do it another; is that what you mean?

'Mr. Campbell: Just a moment. May I object to that on the ground it is improper cross-examination; an attempt to secure an opinion from this witness he didn't testify to on direct.

'The Court: Overruled.

'Q. by Mr. Kirtland: Is that right, Doctor?

'The Witness: Correct.'

To this question an objection was made and overruled. Plaintiff may not urge error here in the overruling of the foregoing objection for the reason that similar evidence had been received without objection, the following question and answer having been asked of Dr. Sloan without objection being made thereto:

'Q. Now when the foreskin comes over the head, a circumcision is done to put the prepuce about right back of the head; is that right? A. That may vary with the doctor who is doing the operating.'

Plaintiff urges that it was error to permit Dr. Sloan to express 'an expert opinion' in answer to questions asked him. Plaintiff is not in a position to urge this proposition on appeal for the reason that in plaintiff's examination of Dr. Sloan on his direct examination he, on a number of occasions, asked the doctor for his professional opinion on various subjects, thereby considering that the doctor was qualified to express such an opinion.

Third: Did the trial court err in refusing to receive in evidence as part of plaintiff's rebuttal two color slides of the plaintiff's penis in erection, which slides had been in the possession of plaintiff during plaintiff's case in chief?

No. Plaintiff urges that such slides were admissible upon the theory that they were proper rebuttal of the testimony of Doctors Crane and Zukor, stating in his brief:

'Until this testimony (Crane and Zukor) came in on defendant's case, the plaintiff had nothing to rebut in connection with the question of the downward slant of his penis upon erection and the inability by reason thereof to have normal intercourse, and the effect of the abdominal apron, if any, on the penis in erection. The necessity to rebut such testimony came about at the close of defendant's case.'

In advancing this argument plaintiff acknowledges the testimony of his own witness, Dr. Sloan, on cross examination wherein he stated that it would be impossible for plaintiff to observe his genitals when standing up due to the fatty obdominal apron. Without objection Dr. Sloan stated that he examined plaintiff and his notes revealed the following:

'Patient in the office. Examination of the penis shows complete healing and the patient has more shaft exposed than he ever had available for intercourse before surgery. Whether his personal anatomical conformation will permit his insertion of penis for intercourse is a doubtful matter to me. The size of his abdomen most likely would prevent this accomplishment.'

Dr. Sloan further testified: 'The Court: * * * Do you mean the position of the abdomen was such that it would rest on the penis when erect, if he were standing?

'The Witness: There is no speculation in my mind about that. The weight of the fat apron of the abdomen would depress the erect penis in a downward direction.'

The foregoing testimony was received during the presentation of plaintiff's case in chief. Therefore there was evidence prior to the testimony of the two defense witnesses, Doctors Zukor and Crane, relative to the inability of plaintiff to have intercourse due to his abdominal apron.

The law is established that one who has the affirmative of an issue may not reserve a portion of his evidence...