Ferrante v. August

• Citation: 248 Or. 16,432 P.2d 167
• Parties: Mary F. FERRANTE, Appellant, v. Edwin A. AUGUST, Respondent.
• Decision Date: 04 October 1967
• Court: Oregon Supreme Court

Page 167

432 P.2d 167

248 Or. 16

Mary F. FERRANTE, Appellant, v. Edwin A. AUGUST, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted July 13, 1967.

Decided Oct. 4, 1967.

Philip A. Levin, Portland, argued the cause for appellant. On the brief were Pozzi, Levin & Wilson and Tyler E. Marshall, Portland.

Frederic P. Roehr, Portland, argued the cause for respondent. On the brief were Vergeer, Samuels, Cavanaugh & Roehr, Portland.

Before PERRY, C.J., and McALLISTER, O'CONNELL, HOLMAN and LUSK, JJ.

LUSK, Justice.

Plaintiff was injured when an automobile in which she was riding sustained a collision with another car. She brought this action for damages against the defendant, the driver of the other car. The jury returned a verdict for the plaintiff in the sum of $205.20. From the consequent judgment plaintiff has appealed, assigning errors which she contends require reversal because they prejudicially affected the jury's consideration of her damages.

Plaintiff alleged in her complaint that as a proximate result of the negligence of the defendant plaintiff 'suffered a tearing, twisting and wrenching of the muscles, tendons, and ligaments of the low back, and a lumbosacral strain, from all of which this plaintiff has been rendered sick, sore, nervous and distressed * * *.'

The accident occurred on December 11, 1964. Plaintiff consulted a physician, Dr. Richard Hopkins, who diagnosed her injury as an acute lumbosacral strain. He prescribed certain exercises and other treatment for her and by the early months of 1966 her condition was considerably improved. About May 26, 1966, however, she felt a very sharp pain in her back as she was getting out of her chair. According to her testimony the chair did not move or slip--she simply felt pain in her back when she was 'about half-way out of' her chair.

Plaintiff reported the incident to Dr. Hopkins. He had last seen her on May 1, 1966, and testified that she had improved considerably though she still manifested symptoms. Regarding her condition later Dr. Hopkins testified:

'* * * In my office on May 27, she indicated she had had an acute onset of pain in the low back which occurred when she arose from a chair, that this was a sudden snap in the back and she had had pain in the low back ever since this time, and at this time she again demonstrated limited motion of forward bending, splinting of the spine, limited hyperextension. She was again placed on therapy as of May 31, 1966, to include injections to the low back area, the use of a muscle relaxant and pain medication.'

It was Dr. Hopkins' opinion that 'the cause of her acute strain was related to her accident of December 11, 1964.' Again, he testified:

'What occurred on May 31 (sic), 1966, she got up from a chair and got a strain again. The only compatability between the December injury and this one is because the patient has been disabled and because she has had continued symptoms she is more vulnerable to a strain, but I would say you would have to say she had a re-attack or a re-strain on May 31 (sic) that produced this rather acute episode at this time.'

Responding to questions by counsel for defendant in aid of an objection, the witness testified:

'Q (By Mr. Vergeer) Doctor, was the strain she suffered in 1966 caused by the accident in 1964?

'A No, the strain wasn't caused by the accident, but the patient was disabled still from her previous accident and would be more likely to get herself into a pain problem with this causative factor.

'Q As a matter of fact, this was an entirely new cause, wasn't it?

'A Not wholly, no. I didn't mean to imply that. This patient was not completely well.'

Finally, in answer to further questions by counsel for the plaintiff relating to the causal connection between the May twenty-sixth strain and the original accident, the witness testified:

'Yes. This minor incident that occurred recently occurred because this patient has had a strain and a chronic difficulty throughout these many months preceding. She was not completely well and had not built up enough musculature guarding by therapy and therefore this strain is attributable to the original accident to the fact that she had not completely recovered. This will _ _.'

Counsel for defendant thereupon moved the court to strike the testimony and instruct the jury to disregard it and the court allowed the motion. The ruling is assigned as error.

The trial court stated as matter of law that the May twenty-sixth incident was an 'independent factor,' which, not having been pleaded, could not be proved. We do not agree.

In an action to recover damages for personal injuries the tortfeasor is liable for all the natural, direct and proximate consequences of his wrongful act or omission: Gilman v. Burlingham, 188 Or. 418, 423, 216 P.2d 252; 22 Am.Jur.2d 116, Damages § 81. In the Gilman case plaintiff pleaded that she had sustained injuries to her back, neck and spine, an abrasion over her right eye and a contusion on the right side of her head. On the trial evidence was admitted of a swelling of her body caused by novacaine injections given by a physician in the course of his treatment of her injuries. We held that the evidence was properly admitted, although the complaint contained no allegations as to the swelling of the body.

In McDonough v. National Hospital Ass'n, 134 Or. 451, 460, 294 P. 351 (cited in the Gilman case) we gave our approval to the line of cases which hold that an injured person may recover from a tortfeasor damages for the aggravation of his injuries caused by the negligence, mistake or lack of skill of his physician. ¹

Numerous cases hold that where the injured person meets with a subsequent accident which would not have occurred but for the original injury the defendant may be held liable for the enhancement of plaintiff's damages caused by the subsequent accident. A typical case is Hartnett v. Tripp, 231 Mass. 382, 121 N.E. 17. There the plaintiff suffered a broken leg and after about nine weeks in bed in a hospital he was able to get up by the use of crutches and sit in a wheelchair. On one occasion in getting out of the chair one of his crutches slipped and he fell back into the chair breaking his leg at the place of the original fracture. The court held that evidence of the subsequent injury was properly...