Devore v. Schaffer, 48494

• Decision Date: 26 July 1954
• Docket Number: No. 48494,48494
• Citation: 51 A.L.R.2d 1041,65 N.W.2d 553,245 Iowa 1017
• Parties: , 51 A.L.R.2d 1041 DEVORE v. SCHAFFER.
• Court: Iowa Supreme Court

Page 553

65 N.W.2d 553

245 Iowa 1017, 51 A.L.R.2d 1041

DEVORE v. SCHAFFER.

No. 48494.

Supreme Court of Iowa.

July 26, 1954.

J. D. Reynolds, of Creston, and Lee R. Watts, of Corning, for appellant.

Thos, E. Mullin, of Creston, and Byron B. Stanley, of Corning, for appellee.

SMITH, Justice.

Plaintiff, an Adams County farmer, desiring to buy some used tubing belonging to the county, went to the county engineer, and then to the county yard in Corning where the County kept bridge steel, lumber, and other highway material: 'I came to see the Engineer to buy some of the old tubes along the road. They had been doing some grading and graveling near my farm and had taken out some tubing. I was interested in buying * * *.'

After a brief call on the Engineer at the shop he went down 'to see the boys who were running the truck' in the yard. He was interested also in some bridge iron which the engineer told him was in the lower yard. He there found defendant and three other county employees at or near a county truck and trailer of which defendant was the driver. The truck was 24 feet and the trailer 18 feet long. There was some conversation and they all walked over to look at the old bridge iron.

They returned to the truck which was near a large diesel oil barrel (described as a 15,000 gallon tank). The truck was in a sort of driveway or roadway headed northeast, an estimated distance of 60 feet southwest of the tank. A small pump house was immediately to the east of and close to the tank. The driveway turns to the north from a northeasterly course at and around this pump house.

There was some conversation as the county men got aboard the truck and trailer, defendant in the driver's seat, one man alongside him in the truck and the other two behind on the flat top of the trailer.

Plaintiff's description of what happened is not too clear: '* * * and they started off and I started up and the trailer just reached and got me. * * * I walked just kind of right up, just outside the truck.' He says the truck started northeast and then turned straight north. 'Well, it just caught my let and foot in the dual wheel and wrapped me around the wheel, and knocked me down, and run over this leg and broke it and tore this one up. I was first caught by the trailer in the right heel. I was thrown just straight flat down. I lit on my head and nose, and cut my lip.'

It is shown in the evidence that when the truck turned to the left to go north around the building the trailer cut nearer the building four or five feet. 'When we come around there with the trailer on, we swing over enough to the east (right) * * * and south, not to catch the trailer onto the building. * * * I knew * * * that the trailer would cut over north from the truck when I started to make the turn.'

Plaintiff explains that when the truck turned left the trailer 'didn't follow' it: 'Q. It didn't go over to the right or follow behind the truck? A. No sir.'

It appears the conversation continued a short distance as plaintiff walked alongside the truck after it started and before it started to turn. Defendant testified: 'I traveled about thirty feet while Devore was still talking to me. He was along the side there, talking to me, and talked to one of the other boys on the truck that I know of.'

The court submitted but two specifications of negligence: (1) In suddenly starting the truck and turning it sharply to the left; and (2) In failing to keep a proper lookout.

The jury brought in a verdict for plaintiff and defendant appeals from the resulting judgment.

I. Defendant first complains of rulings permitting an Omaha doctor to testify as to statements made to him by plaintiff concerning plaintiff's injuries. The objection was that 'the doctor did not treat plaintiff as a patient but merely examined him for the purpose of being able to testify as an expert witness.'

It is urged the doctor repeated statements made to him by plaintiff concerning how the accident happened. There is some ground in the Record to support that complaint. 'I asked him about this accident and he described it, stating how he had been hurt, and how he had his foot fractured. He had numerous body bruises and contusions and some head injuries * * * in the face, nose and lip. He said he was unconscious for several hours.' There is more clinical history upon which the witness based his testimony as to the extent of plaintiff's injuries.

The trial judge at the conclusion of the doctor's testimony advised the jury he had stricken 'all statements made by the plaintiff (to the doctor) regarding the history of his case and his condition' and added: 'You should not consider any statements made by the plaintiff to the doctor, or any opinion of the doctor except that which was the result of and based upon his physical examination of the plaintiff.' (Emphasis supplied.)

And in instruction 12, two days later, the jury was told in effect that while a physician called on to treat and who does treat a patient may testify to what the patient told him as a part of the facts upon which he bases his opinion as to the patient's condition, the rule is otherwise when he is called to make an examination for the sole purpose of determining his condition 'and not for the purpose of treating him. * * * And you will in considering this case, give no consideration to any statements made by the plaintiff to the examining physician who did not treat him for his injuries.' But no caution was given at this point to disregard the expert's opinion based on statements made to him by the patient.

The distinction urged by defendant and adopted by the instruction, between a medical expert witness who is called to treat and actually treats the patient and one called merely to testify seems well established. In Mitchell v. Montgomery Ward & Co., 226 Iowa 956, 285 N.W. 187, 188, it is clearly explained that the rule permitting a doctor to testify as to the history of the case is an exception to the hearsay rule based on 'a probability that the patient will not falsify in statements made to his physician at a time when he is expecting and hoping to receive from him medical aid and benefit. But no such presumption can be indulged, and such testimony is not admissible, according to the great weight of authority, when the patient, having become a litigant, causes himself to be examined by a physician for the purpose of the latter giving evidence in a case about to be tried.' This case was followed in Pierce v. Heusinkveld, 234 Iowa 1348, 1358, 14 N.W.2d 275.

In 32 C.J.S., Evidence, § 536, pp. 259-260, it is said that, although there is some authority to the contrary, a medical expert who has examined the patient for the purpose of becoming witness 'must base his testimony solely on the examination * * * and not on statements in the nature of self-serving declarations made by the patient * * * and acts * * *, which may have been either voluntary or involuntary, cannot form part of the basis of the opinion.' See 20 Am.Jur., Evidence, § 866, citing Annotation 65 A.L.R. 1217, et seq., IIIb.

The witness here frankly admitted the examination he made of plaintiff was for the purpose of qualifying as an expert witness and not of treating him as a patient. He saw plaintiff but once and that was in Omaha. He was asked no hypothetical question based on his own examination alone.

II. Plaintiff tacitly concedes the soundness of this proposition contended for by defendant as did also the trial court. It is urged however that any error in the admission of the doctor's testimony was cured by the admonition to the jury already quoted and instruction 12 already referred to.

We have examined the doctor's testimony to find whether he expressed any opinion based alone on his own physical examination of plaintiff and disregarding the history of the case recounted by plaintiff. He expressed none. The admonition (not repeated in the instructions) placed upon the jury the duty of making a distinction which the witness himself did not make and was not asked to make.

The error in admission of the testimony must have been prejudicial and it could not have been cured by merely striking the testimony of the statements and by admonishing the jury to ignore it and any opinions based on it.

Had the court striken all opinion testimony of the witness we would then have to appraise the situation to determine whether the prejudice was thereby removed. But this the court did not do. Every opinion the doctor expressed was based in part at least on incompetent evidence and was therefore entitled to no consideration. Switzer v. Baker, 178 Iowa 1063, 1079, 160 N.W. 372.

The witness was asked as to his opinion of plaintiff's 'chances of recovery' based upon 'the history of the case (emphasis supplied) and the diagnosis you made there and the x-ray pictures and so on that you took.' He replied: 'This gentleman is in a stationary condition and he will never get any better. It is a long time since the accident and there was apparently a slow healing fracture in that the doctor kept the cast on a long time. He has loss of the big connecting muscle on the front of the right thigh with weakness, and ample evidence to corroborate what he says about his knee wobbling, and as I told him, it probably always will. There is no further treatment. Maybe one of these braces would help his left ankle but there is no treatment for it.'

Neither the form of any question asked the witness nor the language of any answer, gives any clue by which the jury could determine what part of the doctor's opinion was (in the language of the court's admonition) 'the result of and based upon his physical examination of the plaintiff.'

Nor could the court make such determination. Only the witness could know what his opinion would have been without reference to what plaintiff told him. We think there was prejudicial error and that it concerned more than the mere question of the amount of...