Gilman v. Burlingham

• Decision Date: 21 March 1950
• Citation: 188 Or. 418,216 P.2d 252
• Parties: GILMAN v. BURLINGHAM.
• Court: Oregon Supreme Court

216 P.2d 252

188 Or. 418

GILMAN v. BURLINGHAM.

Supreme Court of Oregon.

March 21, 1950

Argued Feb. 23, 1950.

Herbert C. Hardy, of Portland, argued the cause for appellant. With him on the breifs were Cake, Jaureguy &amp Tooze, of Portland.

Warren A McMinimee, of Tillamook, argued the cause for respondent. With him on the brief was J. S. Bohannon, of Tillamook.

Before LUSK, C. J and BRAND, BAILEY, HAY and LATOURETTE, JJ.

LATOURETTE, Justice.

This is an appeal by defendant from a judgment entered against him in the amount of $6,500 for injuries received by plaintiff in an accident involving the truck of defendant and the automobile of plaintiff at the intersection of Highways 101 and 53 at a point commonly known as 'Mohler Junction', a short distance north of Wheeler, Tillamook County, Oregon. The plaintiff charged defendant with negligence as follows:

'2. That defendant drove and operated his oil truck on his left or wrong half of the highway onto plaintiff's right hand lane, forcing plaintiff off said main-traveled portion of the highway into the bridge, thence forcing plaintiff's said automobile over on its side.

'3. In failing to keep his truck under control.

'4. In failing to keep a proper or any lookout for other vehicles on said highway and particularly plaintiff.'

As to the injuries sustained, plaintiff alleged: 'That as a direct result of said collision plaintiff suffered severe, painful and permanent injuries in and about plaintiff's neck, back and spine. That plaintiff sustained an abrasion over her right eye and a contusion on the right side of the head. That her kidneys were affected. ^[1] That plaintiff's entire nervous system has been permanetly affected and shattered. * * *'

Defendant, after certain admissions and denials, pleaded a separate answer to the effect that plaintiff carelessly operated her Ford sedan, that she ran the same into and against the railing of the bridge and turned over on said bridge. The reply denied the allegations in the separate answer.

The first three assignments of error are grouped together by defendant as they all concern '* * * one matter, a swelling of the respondent's body about six weeks after the accident.'

Plaintiff's witness, Witt, testified on the subject as follows:

'Q. What can you describe her condition as you saw her then? A. Well, she was ill that evening so she stayed all night and that next day she started swelling, she started swelling up so much she had to let some of her clothes out, she had to let her support out as far as she could get it, she borrowed a pair of my house slippers to put on, her feet was swollen.

'Q. How long did you say she stayed there? A. Approximately a week.

'Q. About this swelling, what parts of her body were swollen? A. Her whole body was swollen.

'Q. How much was it? A. Well, it was very noticeable.

'Q. How about her face? A. It was very swollen.

'Q. Did it go down any during the week she was there? A. It did towards the last of the week, then I took her home.

* * *

* * *

'Q. Had you observed any of these things that you have just told about during that week about her, prior to this time when you had seen her prior to that accident? A. No.'

Defendant moved to strike out the above testimony as follows: 'Mr. Hardy: If the court please, I think I will move to strike out all this testimony of this witness as in no way indicating that this swelling was, on this particular date as a result of this accident.'

Plaintiff's husband testified:

'Q. Now, after she came back from a trip to the doctor, I think there was some testimony about her swelling, did you have occasion to observe that? A. Yes.

'Q. When was that? A. That was the second trip we went to Chuinard's office.

'Q. What was her condition following that? A. She stayed swelled out for some time but it gradually went down.'

Defendant objected to the above in the following language:

'Mr. Hardy: May I have another exception Your Honor, to this type of questioning which you over-ruled once before about this swelling as being part of this accident?

'The Court: Yes.

'Mr. Hardy: Because there is no connection with that in the first testimony nor here either.

'The Court: The Court has admitted it, you may have an exception to the Court's ruling.'

The third assignment goes to the failure of the court to give the following instruction requested by the defendant: 'There is evidence in this case that at some period of time after the accident the plaintiff had a swelling of various parts of the body for approximately a week, but you are instructed that there is no substantial evidence in this case that such a condition was caused by this accident, and therefore you will disregard the same and allow no damages therefor.'

It will be observed that defendant's objections were confined to the proposition that the swelling was in no way connected with the accident.

The defendant contends that the swelling was occasioned by novocain injections given by plaintiff's physician approximately six weeks after the accident. He states in his brief: 'It thus becomes clear that the swelling of the respondent as an item of damage was separate and distinct from the injuries claimed in the complaint and was not a symptom nor in any way connected with the alleged injuries, except by teatment.'

The evidence is that plaintiff went to her doctor for treatment after the accident, and during the course of the treatment, he gave her novocain injections, after which she suffered a swelling of parts of her body.

It is the law with respect to compensatory damages that a tort-feasor is liable to the person injured for all the natural and direct proximate consequence of his wrongful act or omission.

It is said in McDonough v. National Hospital Ass'n et al., 134 Or. 451, 460, 294 P. 351, 354:

'At common law it is well settled that in an action for a personal injury a party may recover for injuries resulting from the defendant's negligence, even though such injuries are aggravated by the mistaken but honest treatment of a physician. * * *

'One of the reasons which the courts assign for holding the wrongdoer responsible in a common-law action for the negligence of a physician whose unskillful treatment aggravated the injury is that such unskillful treatment is a result which reasonably ought to have been anticipated by the wrongdoer. But the principal reason and the one most generally assigned is that the injury caused by the malpractice would not have occurred but for the original injury and was a proximate result thereof, which is in law regarded as one of the immediate and direct damages resulting from the primary injury.'

The court committed no error in permitting the evidence regarding the swelling to remain in the case and in failing to give the requested instruction.

The fourth assignment of error is directed to the testimony of plaintiff's witness, Foree. The following occurred at the trial:

'Q. How long were you there? A. I believe I was there four days.

'Q. Did you see her after that? A. Yes. During that time she had considerable trouble with her kidneys, that is, it would be possibly all day and all night and half the next day that her kidneys wouldn't function.

'Mr. Hardy: Your honor please, I don't want to prevent anybody from telling all about this trouble, but I must enter an objection to this line of testimony because there is nothing, we have no opportunity to know whether or not she was going to allege kidney trouble--that can come from any number of troubles, therefore, I object to this line of testimony unless Mr. McMinimee wants to amend his complaint to allege that as a result of this accident she suffered kidney trouble so I can have an opportunity to ask his doctor in connection with it.

'The Court: I will over-rule the objection and permit the testimony to go in.

'Mr. McMinimee: If the court please, I might call the court's attention that I didn't ask a question about that, I think she volunteered that, but I am going to ask her about the next question about wetting the bed, which gets around to the same thing.

'The Court: There is no specific allegation of that kind in the complaint.

'Mr. McMinimee: No, just a general allegation.

'Mr. Hardy: May I have my exception noted as continuing to this line of testimony?

'The Court: Yes.

'Q. (Mr....