Curfman v. Monongahela West Penn Pub. Serv. Co.

• Decision Date: 22 November 1932
• Docket Number: (No. 7340)
• Citation: 113 W.Va. 85
• Court: West Virginia Supreme Court
• Parties: Ivy D. Curfman v. Monongahela West Penn Public Service Company.

113 W.Va. 85

Ivy D. Curfman

v.Monongahela West Penn Public Service Company.

(No. 7340)

Supreme Court of Appeals of West Virginia.

Submitted October 25, 1932.

Decided November 22, 1932.

1, Damages

Where it appears that plaintiff has submitted to a number of physical examinations and x-rays of her spine at the instance of the defendant, and that the testimony introduced as a result thereof substantiates defendant's theory of the case in every respect and directly counters the expert testimony submitted on behalf of plaintiff, it is not an abuse of discretion for the court to refuse a request made at the trial to require plaintiff to submit to a physical examination and x-rays by physicians selected by defendant, although the former examinations and x-rays were made by defendant's representatives shortly after the accident and a considerable period prior to the trial.

Evidence

A non-expert witness' conclusion of fact is admissible only when the jury cannot be fully informed regarding the facts upon which he bases it.

3. Evidence

Where, in an action for personal injuries, plaintiff called a physician as a witness, and such witness testified that he had made an examination of plaintiff at the request of her counsel. for the purpose of testifying, it was not error to permit him to testify to statements made to him by the plaintiff, at the time of such examination, with reference to her bodily condition, such

113 W. Va. testimony being admissible as a ground and reason for an opinion to be given in evidence by said witness.

4. Evidence

Evidence that is competent for any purpose is properly admitted over a general objection thereto.

5. Trial

Ordinarily, an incomplete instruction may be cured by another.

6. Appeal and Error

"Remarks of counsel in an argument to the jury, regarded as improper and harmful to the opposite party, should be at once objected to, and the trial court given an opportunity to rule on the objection, and if possible counteract the effect thereof upon the minds of the jury, else the error will be regarded as waived, if afterwards urged as ground for setting aside the verdict and for a new trial." Given v. Diamond Shoe Co., 84 W. Va. 631, 634, 101 S. E. 153.

Error to Circuit Court, Wood County.

Action by Ivy D. Curfman against the Monongahela West Penn Public Service Company. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

K. C. Moore, and Robert R. McDougle and Ambler, McCluer & Ambler, for plaintiff in error.

B. M. Whaley and Russell, Hiteshew, Adams & Hill, for defendant in error.

Woods, Judge:

Plaintiff, an unmarried woman forty-four years of age, obtained a judgment against defendant company for personal injuries alleged to have been received by reason of the collision of the interurban car in which she was riding, with the rear end of the ear immediately ahead.

The negligence declared on was that the motorman of the rear car operated the same at such a rapid rate of speed and in such close proximity of the car preceding it, that by reason thereof he was not in a position to avoid a collision after the operator of the leading car had been compelled to make an emergency stop.

Considerable evidence was introduced on plaintiff's behalf to the effect that prior to the accident she was healthy, worked, took long walks, and apparently enjoyed life, and that since that time she has had only partial use of her left arm, suffers extreme pain in the back and head, and is unable to work. She contends that her present condition is traceable to the accident, while the defendant attributes it to arthritis or rheumatism. A greater part of the evidence is devoted to this issue.

Dr. Boger, the family physician, was consulted a few days after the accident, and some ten days thereafter had an x-ray taken, and, as a result thereof, sent plaintiff' to a chiropractor for the purpose of adjusting the vertebrae. This witness testified that the plaintiff was suffering from a wrench of the ligaments which held the bones of the spine in position; and that while the bones have gradually been brought back into alignment, such injuries are always troublesome being between permanent and semi-permanent. He also stated that such affection leaves innumerable complaints of a neurasthenia nature behind it. Some months after the accident, and prior to the trial, Dr. Goff made an examination, with the aid of x-rays, and. while finding no broken bones, abnormalities or evidence of physical injury, he diagnosed the trouble as traumatic neuresthenia, which he stated is permanent in persons over forty. His conclusion was reached after syphilis, rheumatism and malingering had been considered and eliminated.

The chief assignment of error goes to the court's refusal of defendant's several motions for physical examination of plaintiff, the same to be conducted by physicians of defendant's selection, to be approved by the court. It appears from the record that plaintiff, over the period June 4th to September 3. 192'9, submitted to a number of examinations by Drs. Widemover, Davis and Boice.

Dr. Davis, who examined plaintiff at the latter's residence on June 4. 1929, could find no evidence of injury other than complaint of pain on pressure over the area of the dorsal spine. He testified that he saw plaintiff five times between the 4th and the 14th of June, making brief examinations on some of his visits. On June 7, 1929. Dr. Boice took three x-rays: (1) trunk of the body; (2) dorsal spine A. P.; and (3) profile of the vertebrae. The last picture, according to Dr. Boice, showed lipping in the anterior margins in several of the thoracic vertebrae. Dr. Davis testified that this condition of the vertebrae indicated arthritis, commonly called rheumatism; and both he and Dr. Boice were of opinion that it had taken nine to twelve months for the condition revealed by the x-ray to develop. Dr. Davis stated that the only things upon which a physician can base a diagnosis of neuresthenia are the patient's complaints; that traumatic neuresthenia is a diagnosis that doctors make when they find no pathology; and that arthritis has the same symptoms, except doctors find a pathology. Dr. Widemeyer due to Dr. Davis' absence from the city, was secured by defendant company and made several calls between June 16th to 26th. In an examination on June 16th Dr. Widemeyer found no injury to neck and shoulders, and after a study of the x-rays taken by Dr. Boice, diagnosed plaintiff's complaint as arthritis or rheumatism of the spine. This witness stated that chiropractic treatment, such as prescribed by Dr. Boger. would have a tendency to impair and prolong an arthritic condition.

All the foregoing evidence on behalf of defendant company tends simply to contradict the testimony of plaintiff's witnesses. According to the defense, there was a lipping of the vertabrae. Plaintiff's testimony in effect negatives such condition. What else could an examination reveal in this particular? Further testimony in such regard would be merely cumulative would not tend to show a stronger case. In Perkins v. Traction Company, 81 W. Va. 781, 95 S. E. 797, we held that such matters are within the sound discretion of the trial court. It is apparent that, under the circumstances, that discretion has not been abused. Also, see Quinn v. Flesher, 85 W. Va. 451, 458, 102 S. E. 300.

Three of the errors assigned relate to the admission of evidence of lay witnesses regarding the condition of plaintiff's health prior to and following the accident. One testified in effect that plaintiff was in good health and enjoyed life prior to the accident, while another stated that she had a happy dis- position. A third was permitted to state that plaintiff is now an invalid and helpless. Were the foregoing statements properly admitted? These were statements of fact. It is true that they were to some extent conclusions of fact observed by the witnesses; but not all conclusions of fact of non-expert witnesses are inadmissible in evidence. The test of such admissibility is this: Is it clear that the jurors were or could have been as fully and as exactly furnished with the data which formed the basis of the conclusions of the witnesses as the latter were. If so, the conclusion is inadmissible in evidence; if not, it is admissible. Wigmore on Evidence, sees. 1917, 1921. 1924. 1926, and cases cited. Applying such test we think the testimony in question was admissible.

On direct examination of Dr. Goff, a witness for the plaintiff, the trial court, over objection, permitted the following question and answer: "Q. Doctor, after you took the history of the case, state whether or not in that history you obtained any information as to whether or not she was suffering from pains in the back and in the head, or in the shoulders and in the head? * * * A. In taking the history of this patient, she said that she had been in good health and working for the past year up until an accident had occurred which, she stated, was on May 27, 1929, on a street car. She said she worked five days after the accident with considerable pain about five days with considerable pain but continued her work, then she consulted a physician. She said that following this accident she had considerable pain in her head, the base of the skull and neck, in both shoulders, more particularly the left, and in the back down to the lumbar region. The pain was not so severe in the lumbar region and in the pelvis as it was in the shoulders and back."

The foregoing testimony is attacked as being violative of the rule which precludes a party from giving evidence of declarations made not under oath to bolster up and confirm statements made on trial under oath. Citing, Chicago, etc. R. Co. v. Rowell, 151 Ky. 313. 151 S.W. 950; Stewart v. Everts, 76 Wis. 35, 44 N. W. 1092; Smith v. Hausdorf, 92 Conn. 579. 103 A. 939; Consolidated Traction Co. v. Lamberton, 60 N. J. L. 452, 38 A. 683; Hutchinson v. Jersey Central Traction R....