Daniels v. Riverview Dairy

• Decision Date: 15 April 1930
• Citation: 287 P. 77,132 Or. 549
• Parties: DANIELS v. RIVERVIEW DAIRY.
• Court: Oregon Supreme Court

287 P. 77

132 Or. 549

DANIELS v. RIVERVIEW DAIRY.

Supreme Court of Oregon

April 15, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Lloyd Daniels, a minor, by Bernard Daniels, his guardian ad litem, against the Riverview Dairy. Judgment for plaintiff, and defendant appeals.

Affirmed.

Robert F. Maguire, of Portland (Winter & Maguire, of Portland, on the brief), for appellant.

Paul R Harris, of Portland (Davis & Harris and Joseph Van Hoomissen all of Portland, on the brief), for respondent.

BELT J.

This is an action to recover damages for injuries to person and property resulting from a collision between a motorcycle and an auto truck at the intersection of East Morrison and Thirty-Fifth streets, in the city of Portland. In view of the assignments of error, it is not necessary to make a statement of the facts surrounding the occurrence. From a judgment for $1,525 in favor of plaintiff, the defendant appeals.

Defendant asserts that it was error to permit Dr Saari, a physician who examined the plaintiff, not for the purpose of treatment but to qualify as a witness, to testify as to the history of the case as a basis for his opinion concerning the extent of the alleged injuries. Counsel contends that it was improper for the physician, as an expert witness, to relate what the injured party said to him relative to the history of the case to enable him to make a diagnosis, and that his testimony must be confined to objective symptoms.

In view of the record, we are of the opinion that the question is not before the court.

"Q. What injuries did he have at that time, Doctor? A. The boy came in for a complete examination on March 23rd. At that time he complained of suffering with severe backache dizziness, unable to concentrate, nervousness and weakness. He gave a history--the history prior to the date he came to the office, as far as birth and so on--was absolutely negative, outside of the fact that he had influenza at the age of six; no complications, and at sixteen and seventeen he had a mild attack of tonsilitis, and inquiring as to the history of the backache and dizziness, he states that he was in an accident or collision on September 4th. Up to the time of the injury, he was normal in development and physical condition. He claims that he was going south on 35th Street, and the milk truck--

"Mr. Maguire: Well, just a minute.

"Q. (By Mr. Davis) Not what he told you, except the injuries. A. This was just part of the history.

"Q. Yes; just as to the injuries, give that history. A. On 35th and Washington he was hit by a truck, and he was dragged 30 feet.

"Mr. Maguire: Well, you cannot unring the bell. A. He hit the pavement, was dazed; had temporary loss of consciousness; didn't seem to know what happened. The ambulance took him to St. Vincent's Hospital and he had a headache, dizziness, nausea, no vomiting, and he had a lacerated wound in the back of the left leg; cut right knee cap, bruise left leg to ankle, and there was a burn on the back of the left hand. I went into details about the care at the hospital. * * *

"Mr. Maguire: Oh, I submit, Your Honor--May I ask a question or two?

"Mr. Davis: No objections; go ahead.

"Q. (By Mr. Maguire) This examination was made for the purpose of testifying in this case? A. Yes. He told me his mother sent him for a complete physical examination. I knew nothing of the purpose. * * *

"Mr. Maguire: I submit, Your Honor, this history is improper, and the jury should be instructed to disregard it. It is purely a self-serving declaration, not made in the course of general treatment, and the statements of the surgeon, the testimony of surgeons which is based in fact upon subjective symptoms, made for the purpose of testifying, not for the purpose of treatment, and not in the course of treatment--it is absolutely incompetent. * * *

"Q. (By Mr. Davis) Tell the jury, please, what you found him suffering from, if anything?

"Mr. Maguire: Just a minute; that is the point of my objection.

"Mr. Davis: Well, at this time he had a right to examine him and tell what was the matter with him.

"Mr. Maguire: The purpose of holding that where a doctor is obliged--just a minute; one more question.

"Q. (By Mr. Maguire) Doctor, any diagnosis which you made of him is based partly upon what is known as subjective symptoms? A. We always take into consideration-- "Q. Just answer the question. A. Yes; Subjective symptoms and objective findings.

"Mr. Maguire: My objection is, this doctor's testimony is not competent when it is based in part upon subjective symptoms, not made in the course of treatment, and no treatment followed it. * * *

"Q. (By Mr. Maguire) Did you make any other--prescribe any course of treatment and see how he responded to any course of treatment? A. He did not come to me for the purpose of treatment at all; just a diagnosis; I never treated him.

"Mr. Maguire: I submit the doctor is incompetent, Your Honor.

"Mr. Davis: Let me ask the doctor a question now.

"Q. (By Mr. Davis) Doctor, did you find anything the matter with this boy when you examined him, that you could tell, of your own examination? A. My diagnosis was the lower back injury--sacro-iliac disturbance.

"Mr. Maguire: Well, just a minute.

"Q. (By Mr. Davis) Could you tell that from your own observation and examination? A. You could tell that without any history.

"Mr. Davis: Well, I submit, Your Honor, that the doctor has a right to testify to that.

"The Court: What is his testimony, now, that you want stricken out?

"Mr. Maguire: I submit, Your Honor, the doctor told me a moment ago that he couldn't testify to this man's condition without taking into consideration his history.

"The Court: Well, do you mean by that, that, for instance, if he had a scar on him, if he tells him how he got the scar, he cannot testify to--

"Mr. Maguire: He can testify what the scar is, what it shows.

"The Court: As to the extent of the injury?

"Mr. Maguire: Only what he sees. * * *

"Q. (By Mr. Davis) Doctor, just explain to the jury, if you will, what injuries, if any, you saw, or any marks or evidence of injury that this boy had. A. May I refer to the history, the physical findings here? I can't remember all those.

"Q. Yes, there is no objection to that.

"The Court: But you will have to...