Dean v. Carolina Coach Co., Inc.

• Decision Date: 06 June 1975
• Docket Number: No. 59,59
• Citation: 287 N.C. 515,215 S.E.2d 89
• Court: North Carolina Supreme Court
• Parties: Graham W. DEAN v. CAROLINA COACH COMPANY, INC.

Page 89

215 S.E.2d 89

287 N.C. 515

Graham W. DEAN v. CAROLINA COACH COMPANY, INC.

No. 59.

Supreme Court of North Carolina.

June 6, 1975.

Teague, Johnson, Patterson, Dilthey & Clay by I. Edward Johnson and Grady S. Patterson, Jr., Raleigh, for plaintiff-appellant.

Smith, Anderson, Blount & Mitchell by James D. Blount, Jr.; Samuel G. Thompson and Michael E. Weddington, Raleigh, for defendant-appellee.

BRANCH, Justice.

Defendant assigns as error the ruling of Judge McKinnon in allowing Dr. Alexander Webb to express his expert opinion in answer to a hypothetical question, which defendant contends was defective by reason of being factually incomplete. By this assignment of error and its Exception No. 7, defendant also argued in the Court of Appeals that the Court's failure to strike the unresponsive answer was error.

The Court of Appeals quoted and based its decision on the following rule found in 1 D. Stansbury, North Carolina Evidence § 137 at 452 (Brandis Rev.):

. . . In framing a hypothetical question the following cautions should be observed:

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'2. Include all of the material facts which will be necessary to enable the witness to form a satisfactory opinion. Although it is not necessary to incorporate All (original emphasis) of the facts, the trial judge may properly exclude the witness's answer if the question Presents a picture so incomplete that an opinion based upon it would obviously be unreliable. (Emphasis supplied, footnotes omitted.)

As a general rule, a hypothetical question which omits any reference to a fact which goes to the essence of the case and therefore presents a state of facts so incomplete that an opinion based on it would be obviously unreliable is improper, and the expert witness' answer will be excluded. Todd v. Watts, 269 N.C. 417, 152 S.E.2d 448; Schafter v. Railroad, 266 N.C. 285, 145 S.E.2d 887; State v. Thompson, 153 N.C. 618, 69 S.E. 254; Steiger v. Massachusetts Cas. Inc. Co., 273 So.2d 4 (Fla.App.); Smith v. Twin City Motor Bus Co., 228 Minn. 14, 36 N.W.2d 22. However, there is substantial authority to the effect that the interrogator may form his hypothetical qustion on any theory which can be deduced from the evidence and select as a predicate therefor such facts as the evidence reasonably tends to prove. 31 Am.Jur.2d Expert and Opinion Evidence § 56 at 562; Pigford v. R.R., 160 N.C. 93, 75 S.E. 860.

In Pigford, the plaintiff, an employee of the defendant, stated that he was instructed by his supervisor to load a gondola car with iron rails. He told the supervisor that he had only three men and a boy working with him, and he did not think that he had enough help to load the rails. The supervisor told him to do the best he could. In the process of loading, he felt something 'tear loose' when a rail turned over on him. The evidence further tended to show that the plaintiff suffered a serious hernia as a result of the injury.

The record discloses that during the presentation of the plaintiff's case, an expert medical witness was asked the following hypothetical question:

If the jury should find it a fact that he was engaged in loading a car 7 1/2 feet from the ground with 660 pound rails, with a force of three men and a boy, and in pushing the rail up on the car, or in assisting to push it he felt pain in the region of the stomach from which a hernia was subsequently observed by you, state in your opinion what would have caused the appearance of the hernia. I am asking for your professional opinion as to whether the hernia could have been the result of such an act on his part?

The defendant contended that the abovequoted question was erroneous because the evidence tended to show that the plaintiff was using slides which he had prepared himself and that five men were engaged in the work instead of three, as set forth in the question. This Court rejected this contention, and, although conceding that the question was 'not as full as it might have been,' held that it combined 'substantially all the facts' so that the question was 'sufficiently explicit for (the expert) to give an intelligent and safe opinion.' See also State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85.

The rule relied upon by the Court of Appeals has been considered and somewhat modified by a line of cases represented by State v. Stewart, 156 N.C. 636, 72 S.E. 193. There the defendant, who was charged with murder, objected to a hypothetical question posed as to the cause of death of the victim of the homicide because one fact as to which there was evidence was not incorporated into the question. In rejecting defendant's contention, the Court, Inter alia, quoted State v. Holly, 155 N.C. 485, 71 S.E. 450:

'It is not necessary in the statement of a hypothetical question that all the facts should be stated. Opinions may be asked for upon different combinations of facts on the examination in chief and on the cross-examination.'

If the defendant thought the fact, which was omitted, would have elicited a different opinion from the witness, it was his right and duty to incorporate it in a question on cross-examination.

The statement in Stewart was amplified in Godfrey v. Power Co., 190 N.C. 24, 128 S.E. 485, by the following language: 'It was not incumbent on the plaintiff to include in his (hypothetical) questions all the evidence bearing upon the fact to be proved; the defendants had the right to present other phases of the evidence in counter-hypothetical questions . . ..' Accord: Canney v. Travelers Ins. Co., 110 N.H. 304, 266 A.2d 831.

A leading authority on evidence adopts a view consistent with decisions of this Court:

. . . Some courts have required that all facts material to the question should be embraced in the hypothesis, but this viewpoint seems undesirable because it is likely to multiply disputes as to the sufficiency of the hypothesis, and may tend to cause counsel, out of abundance of caution, to propound questions so lengthy as to be wearisome and almost meaningless to the jury. The more expedient and more widely prevailing view is that there is no rule requiring that all material facts be included. The safeguards are that the adversary may on cross-examination supply omitted facts and ask the expert if his opinion would be modified by them, and further that the trial judge if he deems the original question unfair may in his discretion require that the hypothesis be reframed to supply an adequate basis for a helpful answer. (Footnotes omitted.)

E. Cleary (Gen.Ed.), McCormick's Handbook of the Law of Evidence § 14 at 33--34 (2d ed.). See also 31 Am.Jur.2d Expert and Opinion Evidence § 57; Annotation, 56 A.L.R.3d 300 § 7.

Here, all the evidence disclosed that,...