Gentry v. Watkins-Carolina Trucking Co.

• Decision Date: 04 April 1967
• Docket Number: No. 18630,WATKINS-CAROLINA,18630
• Citation: 249 S.C. 316,154 S.E.2d 112
• Court: South Carolina Supreme Court
• Parties: , 37 A.L.R.3d 766 Murray H. GENTRY, Respondent, v.TRUCKING COMPANY, Appellant.

Page 112

154 S.E.2d 112

249 S.C. 316, 37 A.L.R.3d 766

Murray H. GENTRY, Respondent, v. WATKINS-CAROLINA TRUCKING COMPANY, Appellant.

No. 18630.

Supreme Court of South Carolina.

April 4, 1967.

Hubert E. Yarborough, Jr., of Yarborough & Nettles, Florence, Ward & Howell, Spartanburg, for appellant.

James R. Turner, Spartanburg, for respondent.

LIONEL K. LEGGE, Acting Associate Justice:

Plaintiff sued for personal injuries and property damage resulting from a collision between his small truck and the defendant's tractor-trailer, and was awarded a verdict for thirty thousand dollars actual damages.

There is no substantial conflict in the evidence concerning the accident itself. Plaintiff, then fifty-two years old, was a five-county distributor for Mack Tool Company, and had for the last eight years been engaged in the business of distributing hand tools and test equipment such as are used by mechanics in repair garages and service stations. On the morning of May 12, 1964 he was driving a new GMC 'Handy Van' which he had purchased four days before and in which he was carrying his stock of tools. He entered Interstate Highway 85 from South Carolina Highway 9 and had proceeded a short distance on I--85 (according to his testimony, fourtenths of a mile; according to that of defendant's witness, one-tenth of a mile) when his 'Handy Van', traveling in the right-hand traffic lane at a speed, according to his testimony, of between forty-five and fifty miles per hour, was struck from the rear by the defendant's tractor-trailer carrying a load of approximately ten tons. His vehicle was demolished, much of his stock of tools was lost, and he sustained painful and serious injuries, to which we shall later refer in some detail.

Defendant's truck driver testified that as he approached the junction of I--85 and Highway 9 his speed was between fifty-five and sixty miles per hour; that when he first saw plaintiff's vehicle it was on I--85, about one hundred yards beyond the merger lane for vehicles entering from Highway 9; that he intended to pass the plaintiff's vehicle, and in preparing to do so turned his head to look into his side-view mirror for the purpose of observing approaching traffic before changing over into the passing lane; and that 'when I turned to look into my mirror I--took me maybe a couple of seconds, when I turned back it looked like the truck was just stopped in the road. And I made an effort to try to pass him anyway but I caught up to him too quick, the truck too quick, looked like it had stopped and I hit the left corner of it.'

The defendant has appealed on numerous exceptions, which may be grouped as follows:

1. Those charging error in the admission of certain testimony:

a. of Dr. Joseph Hodge;

b. of the plaintiff himself;

c. of the witness Leonard Brown; and

d. of the witness C. E. Erskine.

2. One challenging, as a charge on the facts, a statement made by the trial judge in the course of his instruction of the jury.

3. One charging error in refusing defendant's motion for new trial upon the ground that the verdict was grossly excessive.

The plaintiff and the defendant's truck driver were the only eye-witnesses to the accident, and the clear inference from their testimony is that the collision was caused not by any fault of the plaintiff, but by the negligence of the defendant's driver. That the defendant shares that view is evidence from its exceptions, none of which questions its liability. It would seem, then, that the main issues here are: (1) was the verdict so grossly excessive as to require that it be set aside; and (2) did the challenged statement of the trial judge constitute reversible error. By the same token, it would appear that the issues raised by the exceptions to admission of testimony are of consequence only insofar as they may bear upon the alleged excessiveness of the verdict, i.e., to the extent that the testimony to which they are directed may have tended to enlarge the verdict beyond the limit of tolerance.

The 'Questions Involved', as stated in appellant's brief, are:

'1. Did the court err in permitting a non-attending and non-treating medical expert witness to give hearsay history and his opinions and conclusions?

'2. Did the court err in admitting incompetent evidence of probative value on a material issue in the case and was it prejudicial?

'3. Did the court err in failing to grant a new trial based on the excessiveness of the jury verdict?'

Question 1 embraces Exceptions 1, 6, 7, 8, 9, 10, 11, 12 and 13, all relating to the testimony of Dr. Joseph Hodge. Exception 1 charges in general language that his testimony as to the plaintiff's injuries was incompetent and that therefore, since it was the only medical testimony for the plaintiff, the court should have granted defendant's motion for judgment n.o.v. because of lack of competent medical testimony establishing that the plaintiff's injuries were the result of the defendant's negligence. This exception overlooks the plaintiff's own testimony, and is clearly without merit.

Exceptions 6, 8, 9, 10, 11, 12 and 13 charge that the trial judge erred in permitting Dr. Hodge to testify, over objection, as to the history given him by the plaintiff at the time and in the course of his examination. The patient's history as thus given to the physician was concerned not only with his recent injury but also with the fact that in 1958 he had undergone an operation for the removal of a ruptured intervertebral disc, from which he had made a good recovery, returning to full-time employment several years before the accident, but which had left him with an 'unstable' back,--a condition that in Dr. Hodge's opinion had been aggravated by the recent injury.

The exceptions under discussion are based upon the premise that Dr. Hodge was not the plaintiff's attending physician, did not treat him, and saw him only for 'evaluation', and thus for the sole purpose of testifying in his behalf. Cited in support of this contention is the following from Chamberlayne on Evidence, Vol. 4, Section 2635: '* * * Should it appear that the declarations were made post litem motam to an attending physician or to a skilled medical observer for the purpose of enabling the latter to testify as a witness for the declarant, the inference of trustworthiness largely disappears or is even reversed, the declaration being rejected by careful administrators as unreliable.'

Appellant's premise is, in our opinion, unsound. For although Dr. Hodge was not the physician who attended the plaintiff immediately after the accident, it is clear from his testimony that on July 18, some two months later, the plaintiff came to him for evaluation and recommendations as to treatment; that he then examined him and recommended treatment; and that thereafter he re-eamined him on numerous occasions and treated him with diathermy, with muscle relaxants, and with injections for the relief of his neurogenic complaints, the last treatment being on January 14, 1966, shortly before the term of court at which the case was tried.

We cannot conclude from the record before us that the plaintiff went to Dr. Hodge simply to enable him to testify in his behalf. Nor, for that matter, can we conclude that his visit to Dr. Hodge was post litem motam, the record being silent as to the date when this action was commenced. And there is nothing here to indicate that the plaintiff, in making to Dr. Hodge these statements (which related not to the defendant's liability, but to the plaintiff's physical condition), was actuated by any such calculated duplicity as is suggested by the rule that appellant invokes. Moreover, that rule does not require that the testimony to which it refers shall be rejected at all events. As pointed out by Professor Wigmore in his work on Evidence, 3rd Ed., Vol. VI, Section 1721, whether or not testimony of the physician as to statements made to him by the patient post litem motam should be excluded is a matter dependent upon the circumstances of each case, and to be left to the trial court's discretion.

Even assuming that Dr. Hodge was consulted for the sole purpose of qualifying him as a witness, we are of the opinion that his testimony as to the patient's history was admissible, not as substantive evidence of the truth of the patient's statements, but as information relied upon by him in arriving at his diagnosis and prognosis.

Statements as to his present condition made by a patient to a physician consulted for treatment are generally admitted as evidence of the facts stated. The decisions are not uniform, however, as to the admissibility, as substantive evidence, of the patient's statements concerning past symptoms. In our early case of McClintock v. Hunter, Dudley's Law (23 S.C. Law) 327, the patient's declaration to his physician as to the time when his disease had commenced was held inadmissible.

Where the physician is consulted not for treatment, but solely as a prospective witness, some courts have held that he may testify only to objective facts observed by him as the basis of his opinion, and not to what the patient has said about his medical history. The majority, and in our opinion sounder, view is that while the physician's testimony as to the patient's statements of his present condition and past symptoms is not admissible as substantive proof of the facts so stated, it is, in the absence of fraud or bad faith (as to which there is no evidence here), admissible as information upon which he has relied in reaching his professional opinions. And since in such case the physician's testimony is admissible in evidence subject to the restriction before mentioned, the fact that he was consulted post litem motam for the purpose of enabling him to testify as an expert witness affords, in itself, no valid ground for rejecting it. The divergent views on the admissibility of testimony by a physician, whether employed for treatment or for the purpose of...