Crovella v. Cochrane
| Decision Date | 22 April 1958 |
| Docket Number | No. A-77,A-77 |
| Parties | Rose CROVELLA and Arthur Crovella, husband and wife, Appellants, v. Cleland D. COCHRANE, M.D., Appellee. |
| Court | Florida District Court of Appeals |
Maurice Wagner and Richard D. Bertone, Daytona Beach, for appellants.
Cobb & Cole, Daytona Beach, for appellee.
Appellant, plaintiff below, seeks reversal of a summary judgment in favor of appellee defendant below, an obstetrician, against whom plaintiff sought to recover damages for personal injuries alleged to result from defendant's negligence in failing to correctly diagnose and treat the plaintiff, his patient, for an alleged pregnancy.
Appellant insists the trial court erred: (1) in conducting the hearing on the motion for summary judgment at the time noticed therefor; (2) in entering the summary judgment without formally disposing of plaintiff's pending motions, one of which was to stay the hearing and the other to strike certain portions of the proofs relied upon by appellee in support of his motion for summary judgment; (3) in refusing to grant said motion to strike; and (4) in entering summary judgment for defendant on the facts presented. The parties will hereinafter be designated as they were in the trial court.
The first point relates to the fact that although copies of the motion for summary judgment and supporting affidavits were served on plaintiff more than ten days prior to the hearing, the originals were not filed with the court until the morning of the hearing. Plaintiff made no objection to the trial court on that score, but on appeal for the first time challenges its authority to recognize the subject pleadings on the ground that they were not filed in compliance with Section 1.4(d), Florida Rules of Civil Procedure, 30 F.S.A., which requires that papers served after the complaint 'shall be filed with the court either before service or immediately thereafter.' There is no merit in this contention. Any advantage sought for violation of the rule must be presented by timely objection to the trial court. Moreover, this court will not concern itself with an assignment of error the nature of which is not shown to be harmful.
The second point challenges the entry of the summary judgment without first formally disposing of plaintiff's pending motions, one for an extension of time in which to present proofs in opposition to the motion for summary judgment and the other to strike certain proofs of the defendant. The court's action was tantamount to a denial of both motions.
As to the motion to extend time for presentation of proofs, the record here reflects that it did not contain the requisite supporting facts, nor was it verified as required by Section 1.36(f) Florida Rules of Civil Procedure. It further appears that when the cause came on to be heard on defendant's motion for summary judgment, the attorney for plaintiff, who also appears for her on this appeal, made an announcement to the effect that the proofs as to which the motion was addressed had in the meantime been secured, thus making it unnecessary to consider the motion. It also appears that plaintiff filed a petition for rehearing in the court below, that approximately three weeks elapsed before it was denied, and that no proffer of additional proofs was made during that period. Counsel for appellant is admonished that under those circumstances it is quite inappropriate to challenge on appeal the absence of a special order disposing of the motion.
It is the duty of counsel to make timely presentation of all evidence of his client on the issues raised by a motion for summary judgment if he is to avoid the consequences of a proper disposition of the motion on the evidence before the court. Sartor v. Arkansas Natural Gas Corp., 5 Cir., 134 F.2d 433.
On the third point, appellant insists that the trial court erred in denying her motion to strike the affidavit of a physician that was filed in support of defendant's motion for a summary judgment. It is argued that the affidavit does not comply with Section 1.36(e), Florida Rules of Civil Procedure in that: (1) it only reflects the opinion of affiant, based upon a hypothetical state of facts, rather than matters within his personal knowledge; (2) its force and effect depends upon the content and authenticity of papers which are not attached to the affidavit or served therewith. The rule provides that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein; and requires that sworn or certified copies of all papers referred to in an affidavit shall be attached thereto or served therewith.
As to the first ground of assault on the affidavit, the overwhelming weight of authority supports the view that except to the extent that the physical condition of a person is open to ordinary observation by persons of common experience, the testimony of one who is qualified in the field of medical knowledge must be adduced to inform the jurors of the proper procedures for diagnosing and treating the particular case. Millar v. Tropical Gables Corp., Fla., 99 So.2d 589; Howell v. Jackson, 65 Ga.App. 422, 16 S.E.2d 45. Jurors and courts do not know and are not permitted arbitrarily to say what are the proper methods of diagnosing and treating human ailments, and the opinion testimony of an expert witness, given in the form of an affidavit, is competent to be received by the judge in disposing of a motion for summary judgment, to the same extent and subject to the same rules as apply to the oral presentation of such testimony before a jury. The first ground of plaintiff's objection to the affidavit is therefore without merit.
The second ground upon which the affidavit is challenged is also without merit. Although the affidavit contains references to papers that are not attached thereto, the papers referred to form a part of the record in the cause. In those instances, if any, where copies had not been served on plaintiff's attorney, he had direct knowledge thereof by having participated in the proceedings as a result of which they were produced and made part of the record. The subject papers consist of depositions and affidavits that were germane to the hearing on the motion for summary judgment, and the references made to them in the challenged affidavit were so explicit as to leave no question as to their identity or relation to affiant's testimony. Thus the purpose of the rule was fully served.
The fourth point challenges entry of the summary...
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