Eagleston v. Rowley

• Decision Date: 07 January 1949
• Docket Number: No. 11807.,11807.
• Citation: 172 F.2d 202
• Parties: EAGLESTON v. ROWLEY.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F.2d 202 (1949)

EAGLESTON v. ROWLEY.

No. 11807.

United States Court of Appeals Ninth Circuit.

January 7, 1949.

George B. Grigsby, of Anchorage, Alaska, and A. J. Lirpoll and George T. Davis, both of San Francisco, Cal. (Sol A. Abrams and Anthony E. O'Brien, both of San Francisco, Cal., of counsel), for appellant.

Hellenthal & Hellenthal, of Anchorage-Juneau, Alaska, Simon Hellenthal, of Juneau, Alaska, and John S. Hellenthal, of Anchorage, Alaska, for appellee.

Before MATHEWS, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

This is an appeal from a judgment awarding the sum of $37,000 to appellee for personal injuries sustained as a result of assault by appellant upon him with a dangerous weapon.¹

The parties agreed that this action should be tried without a jury; that all of the evidence and testimony in the criminal case referred to in Footnote 1 should be considered as in evidence in the trial, and that the parties might introduce additional evidence bearing upon the question of damages to Rowley.

Appellant presents three contentions which cover the essential issues on his appeal. In summary, they are that the trial court committed prejudicial error (1) in allowing excerpts from a medical text book to be read into evidence as part of appellee's case in chief; in allowing pages from said text book to become part of the record herein, and in considering and relying upon the content of said text book in arriving at the damages awarded appellee, (2) in allowing a life insurance agent to give his opinion as to appellee's ability to obtain life insurance, because this agent was not qualified to give such testimony and it was therefore incompetent, (3) the evidence does not justify the excessive award allowed.

We consider these contentions in the order stated.

Dr. Romig, a surgeon who testified, had operated upon appellee shortly after the injuries were inflicted upon him, and continued to treat appellee up to time of trial. He was asked to state his prognosis of appellee's case and in so doing to indicate whether this prognosis, in addition to being based upon his own diagnosis, was based upon any particular medical authority. He answered that "in some measure" his prognosis was based on his study of "Wechsler's Textbook of Neurology," 1944 edition, and also upon the study of "Attorney's Textbook of Medicine," by Gray, 1940 edition,² this in addition to his experience as a surgeon and physician.

Appellee's counsel offered in evidence certain excerpts to be removed from the Gray and Wechsler texts; these were objected to, as exhibits, but appellant's counsel stated to the court that the defense had "no objection to the Court consulting any work that he desires * * * researches on this case. As exhibits we object to them." (Emphasis supplied.)

Appellee's counsel then withdrew his offer of these extracts, as exhibits; the judge stated that he understood that counsel for appellant had no objection to the court considering these texts, to which statement Mr. Grigsby for appellant replied, "Nor any other texts."

During his testimony Dr. Romig read an excerpt from page 538 of the Wechsler text which dealt with prognosis in brain injuries resulting from skull fractures. Relating this incident to the first and third of appellant's contentions above noted, it is urged that Dr. Romig prejudicially "summarized" some of Wechsler's observations on brain injuries.

While Dr. Romig testified at length as an expert, setting forth in great detail his professional opinion concerning the nature, extent, probable duration and ultimate results to be expected from appellee's brain injury, it appears to be appellant's theory that Dr. Romig's testimony must be rejected in toto by us as being void of any probative weight or value because Romig referred to and cited opinions expressed by certain text book writers concerning such injuries. We cannot agree with this contention. An examination of his testimony indicates to us that Dr. Romig was using some of Wechsler's language to express his own professional opinion and to amplify his own conclusions.

Appellant points up his argument by quoting that portion of Finding No. 4 which reads as follows: "* * * that in the fixing of said amount of Thirty-seven Thousand Dollars, pages 534 to 540, inclusive, sub-entitled `Fracture of the Skull,' of `A Textbook of Clinical Neurology, with an introduction of the history of Neurology,' by Israel S. Wechsler, M. D., Fifth Edition, Revised, 1944, W. B. Saunders Company, were considered." (Emphasis supplied.)

Finding No. 3 found that appellee had been damaged in the sum of $37,000. It is argued that this finding and the above quoted language in Finding No. 4 constitute prejudicial error, which infirmity becomes apparent when these findings are measured against the evidence. The specific indictment laid by appellant is that Dr. Romig was not only allowed to read from a medical text "into the record," but the court also allowed the actual introduction of pages of that text into evidence, and then relied heavily thereon in making its findings, conclusions and judgment.³

We do not agree that these claims of error are sustained by the record. The most that can be deduced from the record is that the court took appellant's counsel at his word and "considered" the Wechsler text for whatever it may have been worth, an action virtually invited by appellant. It is certain that the "consideration" referred to by the court was with the full consent of appellant. The mere recital of the court that it had availed...