Ephrem v. Phillips, A-10

• Decision Date: 22 October 1957
• Docket Number: No. A-10,A-10
• Parties: Christine EPHREM, Appellant, v. Frances PHILLIPS, Appellee.
• Court: Florida District Court of Appeals

Page 257

99 So.2d 257

Christine EPHREM, Appellant, v. Frances PHILLIPS, Appellee.

No. A-10.

District Court of Appeal of Florida, First District.

Oct. 22, 1957.

Rehearing Denied Nov. 19, 1957.

John M. McNatt, Jacksonville, for appellant.

Clarence M. Wood, Howell & Kirby, and T. Malcolm Kirby, Jacksonville, for appellee.

WIGGINTON, Judge.

Appellee as plaintiff in the trial court sued for damages resulting from injuries sustained by her in an automobile collision. Liability was admitted and the cause was tried solely on the issue of damages. Judgment for plaintiff was entere on the jury's verdict. Upon denial of defendant's motion for new trial, this appeal was taken.

Appellant assigns as error the court's admission, in the absence of special allegations in the pleadings, of evidence that plaintiff suffered a miscarriage or abortion subsequent to the collision, and the admission of testimony by plaintiff's doctor, alleged to be speculative, to establish a causal connection between the abortion and the injuries received.

The complaint was in the usual form and generally alleged that as a result of defendant's negligence plaintiff was painfully, seriously and permanently injured, bruised and lacerated in and throughout her head, body and limbs by reason whereof plaintiff has and will continue to suffer. No specific allegations as to plaintiff's pregnancy or subsequent abortion appear in the complaint.

The defense interposed consisted of one typewritten line which reads: 'Answering the complaint herein, the defendant denies the alleged consequences of the alleged negligence.'

Extensive pre-trial discovery procedures were employed by each of the parties. Both sides propounded interrogatories and numerous depositions were taken. Or defendant's motion and in pursuance of the court's order, plaintiff submitted to examination by a court appointed doctor in order that her physical condition and the nature and extent of her alleged injuries might be inquired into and information gained thereon by defendant in advance of the trial. The discovery proceedings clearly reveal the plaintiff's claim was, in part, for pain and suffering experienced as a result of an abortion, and for medical expenses incident thereto. Plaintiff's doctors were thoroughly interrogated regarding this phase of the case and all relevant facts were fully explored by defendant's counsel.

At the trial plaintiff offered evidence of the abortion and the resulting pain and suffering. This evidence was vigorously objected to by the defendant on the ground that no issue was framed by the pleadings in proof on which the questioned evidence was admissible All such objections were overruled by the court.

It is appellant's contention that a claim for damages resulting from an abortion or miscarriage growing out of injuries sustained by the plaintiff is an item of special damages which, as such, must be specifically alleged in the complaint as required by rule 1.9(g) of the Florida Rules of Civil Procedure, 30 F.S.A. If appellant's contention is correct as a matter of law, she must prevail here.

In support of her position appellant refers to the rule, well settled in this jurisdiction, that damages for such special losses or injuries as do not naturally or ordinarily result from the negligence alleged may be shown only when the defendant has been advised of them by special allegations in the complaint. ¹ Decisions from other jurisdictions which are cited by appellant adhere to the doctrine that a claim for damages resulting from an abortion arising out of injuries occasioned by the negligent act of another is an item of special damages which must be alleged in the complaint to permit recovery. ² This rule is founded upon the theory that pregnancy is not the usual and natural condition of woman and, therefore, if a claim for damages is predicated upon pain and suffering due to an abortion caused by the negligent act alleged, such claim must be specifically pleaded so the defendant will not be taken by surprise at the trial and thereby denied the opportunity to fully defend.

In the case now before this court it is not asserted, nor could it be, that the defendant was taken by surprise when plaintiff sought to introduce evidence relating to her abortion and the attendant expense, pain and suffering. The record reveals that defendant's counsel was fully informed of this intended claim and all facts which would be offered to support it. Moreover, the very able cross-examination of the expert witness on behalf of plaintiff by the astute counsel for the defense clearly shows that he not only expected such proof to be offered, but was fully prepared to meet it.

The means of learning all facts bearing upon or relating to a claim for damages resulting from injuries derived from the alleged negligence of another are afforded in ample measure by the discovery procedures in force in this jurisdiction. We see no reason for a defendant in a personal injury action to be surprised at trial by proofs adduced by the plaintiff as to the injuries sustained or the pain and suffering resulting therefrom. Should a defendant through no lack of diligence on his part find himself genuinely surprised and prejudiced by plaintiff's proof, he has adequate remedy in a motion to suspend or for a new trial grounded on surprise.

We cannot subscribe to the view that pregnancy is necessarily an unnatural or unusual condition in the average married female. There is no greater reason to assume that a married woman with normal powers of conception would not be expectant at the time of any accident in which she might be involved than there is to assume she would suffer no injuries as a result of such an accident. The evidence in the instant case clearly reveals that the abortion suffered by appellee resulted in the loss of a previable fetus of which she was pregnant at the time of the collision on which she seeks recovery. There is no claim made for damages which may have been sustained by reason of loss of the child which might have been born had not the pregnancy been disturbed. The claim for which damages were sought was restricted to the pain and anguish suffered by plaintiff as a result of injuries she received, and for expenses incurred by reason of such injuries. The pain and discomfort arising from the abortion constitute but a part of the damages claimed and for which recovery was sought.

Within the allegations of the complaint it is clear that plaintiff might show any change in her physical condition due to the injuries sustained, and such was the abortion. Where only such damages as may be reasonably expected to follow an injury are claimed, no allegation of special damages is required. ³ In personal injury actions proof tht the plaintiff's pain and suffering resulted in and were aggrvated by an abortion is clearly admissible. So far as the abortion augments the physical injury, pain or suffering, then so far is it proper to be considered on the question of damages. ⁴

For the foregoing reasons we hold that a claim based upon pain and anguish, suffered as a consequence of injuries sustained from the negligent act of another, is not an item of special damages merely because such pain nd anguish resulted in and was aggravated by an abortion.

The remaining assignment of error challenges the trial court's ruling which permitted the jury to consider testimony offered by plaintiff's doctor establishing a causal connection between plaintiff's injuries and her subsequent abortion. He was duly qualified as an expert witness and his testimony evidences complete familiarity with the history of plaintiff's injuries and treatment and the abortion which she experienced. On direct examination he was asked whether in his opinion, based upon the facts in evidence, the probabilities were that plaintiff's injuries and the resultant medical treatment caused the miscarriage or abortion to which he replied, 'Yes, sir.' On cross-examination the doctor conceded that it is still medically impossible to ascertain or determine absolutely the exact causes of abortions or miscarriages. Following this statement the doctor was informed by defendant's counsel, in the form of a question, that in view of his last answer he was 'speculating' when he expressed an opinion that plaintiff's injuries and treatment caused her to abort. Again the doctor replied, 'Yes, sir'. For emphasis counsel immediately charged, again in the form of a question, that the doctor admitted he was 'speculating', and the doctor agreed. Later however, during the same cross-examination, the doctor was asked whether he was willing to swear that plaintiff's abortion was in his opinion caused by injuries received in the collision, in response to which he testified: 'I do.'

Appellant insists that the foregoing shows that the opinion expressed by plaintiff's doctor was based upon pure speculation, and, therefore, not admissible in evidence under the rule well settled in this jurisdiction that speculation cannot supplant proof, and that a verdict based upon such evidence cannot stand. ⁵

It seems quite clear from a reading of the doctor's sworn testimony that he was merely recognizing the fallibility of informed medical opinion. It is equally obvious that he considered 'speculating' and 'incapable of absolute proof' as synonymous. By skillful cross-examination such discrepancy between the witness' intended meaning and the dictionary definition of a word is often made to appear, but this does not justify permitting the suit to devolve into a battle of semantics: ⁶ 'The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal' ⁷ The single admission in this case that the doctor's opinion concerning the connection between plaintiff's injuries and her abortion was speculative does give color to appellant's contention. Under the circumstances, however, it does not warrant...