Gimbel v. Laramie

• Decision Date: 19 May 1960
• Court: California Court of Appeals Court of Appeals
• Parties: Clifford GIMBEL, Plaintiff and Appellant, v. Thomas J. LARAMIE, Defendant and Respondent. Civ. 18728.

Page 88

5 Cal.Rptr. 88

181 Cal.App.2d 77

Clifford GIMBEL, Plaintiff and Appellant, v. Thomas J. LARAMIE, Defendant and Respondent.

Civ. 18728.

District Court of Appeal, First District, Division 2, California.

May 19, 1960.

Rehearing Denied June 17, 1960.

Hearing Denied July 12, 1960.

William E. Ferriter, San Francisco, for appellant.

Sedgwick, Detert, Moran & Arnold, San Francisco, for respondent.

STONE, Justice pro tem.

This is an appeal from a judgment in favor of appellant after a trial by the court, sitting without a jury. While stopped at an arterial stop sign, appellant's car was rammed in the rear by a vehicle driven by respondent, who admitted liability. Appellant alleges that the blow to his car snapped his body backward against the seat from which he was then catapulted forward against the steering wheel. This, he and his doctors contend, caused the anterior portion of his heart to be bruised, resulting in a myocardial infarction. Respondent's medical expert testified that there had been no heart bruising or infarction and that appellant's heart condition after the accident resulted from a pre-existing arteriosclerosis of the coronary arteries which condition had been exacerbated by the accident. He also testified that appellant suffered a back injury from the original thrust which threw his body backward against the seat. The court found in accordance with the medical testimony of respondent. This finding, appellant contends, resulted in an inadequate award to him of general damages.

The grounds of appeal in this case, other than the alleged insufficiency of the evidence, which we shall consider first, are somewhat unusual. Rather than narrate all of the facts at the outset, we shall relate additional facts pertinent to each specification of error as the particular contention is considered.

Appellant first urges that there is no evidence to support the court's finding that he did not suffer a myocardial infarction. He cites the record of his injuries, the electrocardiograms, the results of other examinations made by his doctor, together with the hospital records as conclusive evidence of a heart injury. Yet, the respondent's medical expert testified in regard to the same evidence which appellant has pieced together and arrived at a different conclusion. Counsel for appellant cross-examined respondent's doctor in some detail as to his interpretation of the evidence and his opinion deduced therefrom. The court simply found the testimony of respondent's doctor to be more reasonable than that of the doctors produced by appellant. Since respondent's doctor based his expert testimony upon evidence before the court, it cannot be said that the record does not support the court's finding. Cases holding that an appellate court will not attempt to re-weigh the evidence or determine the credibility of witnesses are legion (Berniker v. Berniker, 30 Cal.2d 439, 444, 182 P.2d 557). The testimony of a medical witness in answer to hypothetical questions based on the facts in the record is sufficient to support a finding contrary to the testimony of other medical witnesses who have seen and examined the patient. Sales v. Bacigalupi, 47 Cal.App.2d 82, 86, 117 P.2d 399; Sim v. Weeks, 7 Cal.App.2d 28, 37, 45 P.2d 350. The testimony of one credible witness, if believed, is sufficient to support a finding of the court. Sales v. Bacigalupi, supra; Marini v. Department Alcoholic Beverage Control, 177 Cal.App.2d 785, 2 Cal.Reptr. 714; Berger v. Steiner, 72 Cal.App.2d 208, 214, 164 P.2d 559.

Appellant's next contention is that the court had no authority to award damages for medical services and expenses and pharmaceutical costs for lesser amounts than his medical witnesses testified were reasonable. Appellant argues that the court was bound to accept the charges which his doctors testified to be reasonable because there was no direct evidence that such charges were unreasonable. In other words, appellant challenges the authority of the court to delete individual items and thereby reduce the total unless there has been testimony that the item is not a reasonable charge. The record reflects that the various services afforded appellant other than the hospitalization, which we shall consider separately, were discussed item by item and in considerable detail on direct examination. On cross-examination also, inquiry was made into the items charged as well as the nature of the services rendered. It is within the province of the court to determine which of the various items received in evidence were reasonable, which were necessary, and from them to determine the total amount recoverable. The direct testimony of a witness that a particular item was unnecessary or unreasonable is not a prerequisite to the deletion of that item by the court from the total claimed. Harris v. Los Angeles Transit Lines, 111 Cal.App.2d 593, 598, 245 P.2d 35; Seedborg v. Lakewood Gardens Civic Ass'n, 105 Cal.App.2d 449, 454, 233 P.2d 943; Sills v. Soto, 124 Cal.App.2d 539, 545, 269 P.2d 98.

The hospital bill which was not temized, presents a different question. The court allowed nothing for hospitalization, finding that 'there is no evidence before the court as to the reasonable value of said hospitalization.' The only evidence concerning damages by reason of hospitalization was the following stipulation:

'Mr. Ferriter: We will stipulate that the hospital bill is $1547.60.

'Mr. Sedgwick: We will stipulate that that was the amount of the hospital bill.

'The Court: That was the amount of the hospital bill. All right.'

Appellant does not contend that the bill had been paid and thus was some evidence of the reasonableness of the charge. He argues that the stipulation dispensed with the need for proof of either the necessity or the reasonableness of the charges. The foregoing excerpt from the record reflects that appellant asked respondent to stipulate that $1547.60 was the amount of the hospital bill and it is clear that respondent was careful to limit his response and stipulation to the amount. He did not stipulate that it was either reasonable or necessary nor was he asked to so stipulate. It has long been the rule that the cost alone of medical treatment and hospitalization does not govern the recovery of such expenses. It must be shown additionally that the services were attributable to the accident, that they were necessary and that the charges for such services were reasonable. Harris v. Los Angeles Transit Lines, supra; Guerra v. Balestrieri, 127 Cal.App.2d 511, 520, 274 P.2d 443. As we have noted hereinbefore the court reduced the amount charged for and claimed as medical expenses. Such allowance of a lesser amount indicates that the court either did not believe that all of the expenses charged to appellant were attributable to the accident, or that some of the items were not necessary, or that they were not reasonable. This, the court could not do in relation to the claim for hospitalization, since it was not itemized. If the court by reason of evidence adduced during the trial doubted the necessity or reasonableness of any part of the total hospital bill, it had no alternative but to deny the entire amount.

Appellant next contends that the trial court should have disqualified himself upon learning that appellant's principal medical expert witness had been deprived of his license to practice medicine for a period of 2 years. The disenfranchisement was brought out during the cross-examination of appellant's heart specialist. Counsel for appellant expressed no surprise at the time the evidence was adduced nor at the close of the cross-examination of the witness. Rather, appellant concluded his case in chief, rested, and later after respondent had put on part of his case, the following occurred:

'Mr. Ferriter: All right, your Honor. Your Honor please, at this time I would like to reopen the plaintiff's case in chief upon the ground, your Honor, that yesterday I was taken by surprise. I did not know certain developments that occurred when Dr. Bernard Davis was on the witness stand. Without reiterating them, I mean your Honor is aware of what occurred. And naturally, I would have naturally and normally, I would have to use his testimony because he was the attending cardiologist. But had I known, I would have produced an additional witness in my case in chief. At this time I would like to reopen so I can put on an additional internal man, cardiologist.

'Mr. Sedgwick: At this time I would like to object to this in this proceeding. It's improper redirect and improper reopening of the case. What counsel may or may not have known about his witness, of course, is no responsibility of the defendant.

'The Court: Very well, permission to reopen will be granted.'

In his affidavit in support of a motion for a new trial, counsel claimed surprise at the revelation of the doctor's past. His affidavit also alleged something which was not brought out at the trial, namely, that the doctor had also been tried for a criminal offense, a violation of state narcotic laws, and that the trial judge had presided at the criminal trial. Counsel for appellant disqualified the trial...