Dzurik v. Tamura

• Court: Hawaii Supreme Court
• Writing for the Court: TSUKIYAMA; LEWIS
• Citation: Dzurik v. Tamura, 44 Haw. 327, 359 P.2d 164 (Haw. 1960)
• Decision Date: 29 June 1960
• Docket Number: No. 4048,4048
• Parties: John S. DZURIK v. Richard I. TAMURA.

Page 164

359 P.2d 164

44 Haw. 327

John S. DZURIK v. Richard I. TAMURA.

No. 4048.

Supreme Court of Hawai'i.

June 29, 1960.

Syllabus by the Court.

1. Proximate causation of an injury must be proved and is never presumed.

2. When the issue is one of proximate causation of an injury and at the time of the accident in question the plaintiff was suffering from a physical defect, the necessary causal connection may be supplied by proof that the accident activated or aggravated this condition.

3. A case involving a medical issue is no exception to the rule that, when there are conflicting inferences and conclusions, it is the function of the trier of facts to select the one which it considers most reasonable. The findings of fact will not be set aside unless clearly erroneous. H.R.C.P., Rule 52(a).

Arthur B. Reinwald, Honolulu (Robertson, Castle & Anthony, Honolulu, on the briefs) for appellant.

Katsugo Miho, Honolulu (Fong, Miho, Choy & Robinson, Honolulu, on the briefs), for appellee.

TSUKIYAMA, C. J. and MARUMOTO, CASSIDY, WIRTZ and LEWIS, JJ.

LEWIS, Justice.

In an action tried without a jury, defendant-appellee was adjudged liable for the negligence of a minor, his son, who drove defendant's automobile into a Wahiawa Transport Company bus, injuring plaintiff-appellant, the bus driver.

Plaintiff was awarded $2,500 and costs. His appeal asserts inadequacy of this sum. The reason why the judgment was not larger was that the court found against the plaintiff on the question stated by the court as follows:

'The question for this Court to decide is to determine whether the accident of August 23, 1953 caused the injury which ultimately necessitated surgery on January 19, 1955, or whether there was some intervening injury which resulted in the necessity for the operation.'

The specifications of error assert in various forms that the court erred in making the following finding:

'* * * that the injury which caused the disability which ultimately necessitated in the operation of January 19, 1955, was not due to the automobile accident of August 23, 1953. That the injury resulting in said disability was due to some separate and distinct intervening cause.'

The operation of January 19, 1955 was performed on plaintiff's spine. It was the fourth such operation. The other operations had been performed before the accident. Whether the defendant is liable for the decompensation of the spine necessitating this fourth operation is the point at issue.

The $2,500 awarded was exclusive of claims based on the spinal condition, which was by far the greatest cause of pain and suffering, loss of work and medical expense.

The principles as to proximate causation, burden of proof and evaluation of medical testimony which are determinative here are as follows:

1. Though the negligence was shown, the causal connection between the negligent act and the injury complained of--here the decompensation of the spine which necessitated the operation of January 19, 1955--also must be shown. Proximate causation of an injury must be proved and is never presumed. Jackson v. Colston, 116 Utah 295, 209 P.2d 566; Bish v. Employers Liability Assurance Corp., 5 Cir., 236 F.2d 62; see also Lyu v. Shinn, 40 Haw. 198.

2. It being the fact that at the time of the accident the plaintiff was suffering from a physical defect the necessary causal connection may be supplied by proof that the accident activated or aggravated this condition. Rideau v. Los Angeles Transit Lines, 2d Dist., 124 Cal.App.2d 466, 268 P.2d 772; Perry v. McLaughlin, 212 Cal. 1, 297 P. 554; Owen v. Dix, 210 Ark. 562, 196 S.W.2d 913; Mourison v. Hansen, 129 Conn. 62, 20 A.2d 84, 136 A.L.R. 413; Rainwater v. Timothy, La.App., 87 So.2d 11; Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 58 N.W.2d 561; 15 Am.Jur., Damages, §§ 80, 81.

3. A case involving a medical issue, such as the present one, is no exception to the rule that, when there are conflicting inferences and conclusions, it is the function of the trier of facts to select the one which it considers most reasonable. Yin v. Acme Mattress Co., 40 Haw. 660, 672, 674; Awai v. Paschoal, 43 Haw. 94, 97; Fukuoka v. Dodo, 43 Haw. 337, 340; Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142; Behles v. Chicago Transit Authority, 346 Ill.App. 220, 104 N.E.2d 635. However, when the trier of facts 'would be required to speculate and guess on too many elements in the chain of causation' a verdict may be directed for the defendant. Jackson v. Colston, supra. [116 Utah 295, 209 P.2d 569].

4. When causation of the injury is a medical issue, as it is here, '[the] matter does not turn on the use of a particular form of words by the physicians in giving their testimony,' since it is for the trier of facts, not the medical witnesses, to make a legal determination of the question of causation. Hence, the failure of a medical witness to testify positively as to what was the cause of the injury, or his statement that the accident 'might' be or 'probably' was the cause of the injury, is merely a circumstance to be taken into consideration by the trier of facts. Sentilles v. Inter-Caribbean Corp., supra; Fukuoka v. Dodo, supra; Dornell v. Retirement Board, 1st Dept., 72 Cal.App.2d 197, 164 P.2d 266, distinguishing Brant v. Retirement Board, 1st Dept., 57 Cal.App.2d 721, 135 P.2d 396 on which plaintiff relies.

The accident occurred August 25, 1953. The day after, plaintiff was examined by Dr. John William Cooper, an orthopedic surgeon who had been treating him for low back injury since June 18, 1948, at which time Dr. Cooper had ascertained that plaintiff had a separation of the last lumbar vertebra from the sacrum, with resultant slippage forward on the sacrum, a congenital defect called spondylolisthesis. When plaintiff first went to Dr. Cooper he was 33, an age of lessening resiliency, and was experiencing low back discomfort. In a spondylolisthesis case pain comes from deterioration due to stress or pressure. Plaintiff was grossly overweight and had been doing heavy work in the City and County garbage department since November 1947. He had experienced pain for two or three months before he went to Dr. Cooper, with sharp pain experienced during handling of a garbage can shortly before the first visit to Dr. Cooper.

Because of plaintiff's overweight and heavy pursuit, a spinal graft to hold immobile the zone where the slippage was occurring was performed July 7, 1948. Plaintiff was fitted with a back brace. He saw his doctor frequently during 1948 and 1949.

In July, 1949, a year after this first operation, in addition to some discomfort in the back, there was discomfort in the right hip and knee indicative of a new condition, as was concluded by Dr. Cooper in December, 1949. Thereafter Dr. Cooper did not see plaintiff again until September 8, 1950. At that time, he complained of pain when sitting down, also when standing for long periods.

The leg symptoms had increased and because of this a decompression operation was performed on November 1, 1950, to remove some bone which had grown around the first sacral nerve and relieve the pressure on the nerve. At the time, as testified by Dr. Cooper, 'we felt that in such a large man that probably some additional bone graft would have to be placed on there sooner or later, but we did not wish to do it at that time.'

On January 22, 1951, after the leg complaints had cleared up, a third operation was performed to 'repair the so-called decompressed area and put more bone to make it more solid.' This operation was to fuse the third, fourth and fifth lumbar vertebrae together with the sacrum into one solid piece to provide support and prevent pain.

In July, 1951 plaintiff resumed work, driving a taxi at night. He was supplied with a brace for additional support when driving. He was advised against heavy bus driving, which Dr. Cooper considered 'more rugged,' because of the heavier wheel, clutch and brake.

Dr. Cooper testified that there was a 55% chance of obtaining a solid fusion in the January, 1951 operation. In this case a pseudarthrosis condition developed. A pseudarthrosis, it was explained, is a 'separation or breakage' in the graft 'making a place of motion' shown by the four-way bending test. In this case there was 'slight motion' between the fourth and fifth vertebrae and 'considerable motion' between the third and fourth vertebrae 'almost as if it wasn't even fused' on the side bend. This appeared in x-rays taken in September, 1951 and March, 1952.

Dr. Cooper testified that this pseudarthrosis condition was not necessarily painful, and quoted statistics that in 41% of such cases it is not painful. However, as he further testified, in a case of incomplete graft even if the patient does not feel pain there is a tendency for it to keep on irritating and becoming separated. Driving a hard-steering bus with a hard clutch might aggravate the pseudarthrosis condition, as might sitting long hours and other stress factors.

At about the time of a visit to Dr. Cooper on August 8, 1952, plaintiff went to work as a bus driver. The doctor told him it would be all right to drive the bus if he used the brace. There was slight back discomfort at that time but no leg pain.

Dr. Cooper had seen plaintiff from time to time since his 1951 operation, and saw him again on September 17, 1952, at which time he was 'improved enough to work regularly.' The record of this visit contained no indication of pain. 'Marked improvement' was noted. For the next eleven months. Dr. Cooper did not see plaintiff, until the day after the accident.

Plaintiff testified, concerning this elevenmonth period, that he had no pain or discomfort, worked as a bus driver 48 hours or more a week, and from October, 1952 had an additional job washing buses at which he worked from 15 to 25 hours a week. He wore the brace while driving, until he discarded it the latter part of 1952 or early in 1953....