Herman v. Ferrell, 869A143

• Decision Date: 27 December 1971
• Docket Number: No. 2,No. 869A143,869A143,2
• Citation: 150 Ind.App. 384,276 N.E.2d 858
• Parties: James HERMAN, Defendant-Appellant, v. James FERRELL, Plaintiff-Appellee
• Court: Indiana Appellate Court

Page 858

276 N.E.2d 858

150 Ind.App. 384

James HERMAN, Defendant-Appellant, v. James FERRELL, Plaintiff-Appellee.

No. 869A143.

Appellate Court of Indiana, Division No. 2.

Dec. 27, 1971.

Rehearing Denied Feb. 10, 1972.

Patrick J. Dougherty, Jon Schmoll, Spangler, Jennings, Spangler & Dougherty, Gary, for defendant-appellant.

Albert C. Hand, Hammond, William H. James, Dyer, for plaintiff-appellee.

STATON, Judge.

This is an appeal from a jury verdict of Fourteen Thousand Dollars ($14,000.00) in favor of the appellee-plaintiff. His complaint alleged the negligent operation of appellant-defendant's automobile when it struck indirectly appellee-plaintiff's automobile in the rear at an intersection in Lake County, Indiana.

James Ferrell was driving north on U.S. Highway 41 in his 1962 Oldsmobile on November 15, 1964. He stopped at the intersection of U.S. Highway 41 and Airport Road in Lake County, Indiana to make a left turn. Lucy Roy was driving a 1963 Chevrolet immediately behind him. Behind Lucy Roy was James Herman driving a 1964 Ford. Herman's automobile struck Roy's automobile in the rear which in turn struck Ferrell's automobile in the rear. Ferrell filed suit against both Roy and Herman for personal injuries and property damages totaling $50,392.47 plus costs. A directed verdict was rendered in favor of Lucy Roy. The jury rendered a verdict against defendant Herman for $14,000.00 and he appeals, setting forth the following four (4) errors:

ERROR ONE (1): The trial court committed error by admitting medical testimony based upon possibility rather than probability which will not support a verdict.

We cannot agree with this contention of error.

Approximately twenty (20) objections were made by Herman to testimony which he believed to be speculative.

Three examples of such questions, answers and objections are as follows:

'Mr. Hand: State whether you have an opinion based on reasonable medical certainty as to whether or not the injury that Ferrell received in November of 1964 did or could have resulted in his disability to continue in his regular occupation of climbing in high places such as tree trimming and cutting and construction work.

Mr. Dougherty: We would object in addition to being conjecture and speculation, it is a double question.

The Court: Over-ruled.

A. Yes.

Mr. Hand: And would the possibility of this weakened condition subject this area to further damage by unusual movements such as climbing or heavy lifting?

Mr. Dougherty: Your Honor, we are going to object to this on the same grounds because of the hypothetical situation in question, there is no evidence in the record that there is any damage mentioned, it is based on speculation, beyond the issues, and of no probative value.

The Court: Over-ruled.

A. Yes, it would.

Mr. Hand: And the fact that he worked or had to work subsequent to this time of the injury in 1964, and that he may have been required to do lifting, would that be consistent if further damage would have been caused as a result of a weakened condition?

Mr. Dougherty: Your Honor, we will have to renew our objection for the reason that this is based purely on speculation and conjecture, of no probative value, beyond the issues enjoined by the plaintiff's complaint and the answer, irrelevant, immaterial and beyond the scope of cross examination.

The Court: Over-ruled.

A. Yes, sir, it could be.'

Defendant Herman relies heavily upon Beaman v. Hedrick (1970), Ind.App., 255 N.E.2d 828 (20 Ind.Dec. 469), to support this contention. Beaman, supra, was a paternity suit tried without a jury. In a decision written by Judge Sullivan, this court stressed:

'The crucial question in this appeal is whether the evidence tending to show that appellant is the father is sufficient or adequate to induce conviction upon that ultimate issue in the mind of reasonable persons in the light of the maximum period of gestation as shown by that same evidence. The evidence concerning the length of the gestation period is therefore all important.' Beaman, supra (255 N.E.2d at 830, 20 Ind.Dec. at 472).

The medical question in Beaman, supra, was whether '* * * a gestation period of 202 days could produce a seven-pound child, 19 1/2 inches in length.' The court asked the following questions of the doctor:

'BY THE COURT: All right, now one last question. Considering this particular baby, its weight was seven pounds, its length was nineteen and a half inches, its appearance, which you apparently examined very carefully, considering its condition when it was delivered, in your general opinion, could it have been possible for this baby to have been a baby of a 212 (sic) day pregnancy?

BY THE WITNESS: Two, twelve?

BY THE COURT: Right. Conceived November 16th, (sic) born June 16th.

BY THE WITNESS: Well, it would be unusual. I'll put it that way, if it were.

BY THE COURT: Would it be impossible?

BY THE WITNESS: It would not be impossible.

BY THE COURT: That is all the questions I have. Do you gentlemen have any further question?

The following exchange by the appellant's counsel, the witness and the court is as follows:

'Q. You say it would not be impossible, would it be probable?

A. Not probable.

BY THE COURT: I just asked him and he said not probable, but not impossible.'

Beaman, supra (255 N.E.2d at 832, 20 Ind.Dec. at 474).

This court did not declare the above medical testimony inadmissible but did observe that 'The trial court's determination here is supported only by certain inferences which we believe to be unreasonable.' Beaman, supra, (255 N.E.2d at 831, 20 Ind.Dec. at 473). The expert medical testimony considered with other unreasonable inferences could not support the judgment and therefore Beaman, supra, was reversed. In the instant cause, there is an abundance of direct evidence and strong reasonable inferences which support the determination made by the jury. Defendant Herman's contention is that such expert medical testimony is not admissible regardless of any supporting evidence.

The degree of speculation was much greater in Beaman, supra, than in the present case. Here we have the expert medical testimony being offered to establish the causal relationship between a known physical injury resulting from a known accident with a particular disability. In Beaman, supra, a known physical act of sexual intercourse was being related to an unknon physical condition, a very unusual premature birth of a child.

In Cerra v. McClanahan (1967), 141 Ind.App. 469, 472, 229 N.E.2d 737, 739, the appellant urged that error had been committed when the court overruled his objection to the following:

"Q. Doctor, will you give me your opinion as to what if any effect this trauma and the following injury and pain and so on following it, that the Plaintiff told you of, would have upon a patient such as this who had this hereditary cardiac disease of which you spoke?

"A. It could have an indirect--

"Q. Will you explain what you mean by that?

"MR. LINK: Your Honor please, we will object to the doctor's answer because it used the word 'could'. Again, this connotes possibility and not probability.

"THE COURT: The answer will stand, and any may continue with your answer, Doctor.

"A. It could have an effect in that it might as a result of pain produced in the Plaintiff cause him to limit his activities which might be beneficial to his well being, to stave off the early onset of cardiac disease. It is well known that healthful exercise such as this man can no longer engage in may have an effect beneficial or salutary effect on the general circulatory system, causing such a person not to have an early onset of arteriosclerotic heart disease.

"MR. LINK: I move to strike the entire answer based upon speculation used in the words 'might,' 'could,' and so forth.

"THE COURT: The answer will stand."

After discussing the presumption in favor of the correct action of the trial court as to the weight or sufficiency of the evidence this Court in Cerra, supra, 141 Ind.App. at 474, 229 N.E.2d at 740, concluded:

'In addition, the admission of such evidence in our opinion was not error as the objection would go only to the weight of the evidence and not its admissibility.'

In Beaman, supra, we did not hold that such testimony was inadmissible but such testimony standing alone without other reasonable inferences to support it cannot support a judgment. In the present case there was ample supporting evidence as well as many reasonable inferences.

In Magazine v. Shull (1945), 116 Ind.App. 79, 87, 60 N.E.2d 611, 614, this court stated in an opinion written by Judge Crumpacker that:

'In this state, however, it is settled law that the opinions of medical experts using words such as 'might', 'could', 'likely,' 'possible', 'may have', etc., in testifying concerning the causal connection between accident and disability, if coupled with other credible evidence of a nonmedical character, is substantial evidence and sufficient to sustain an award.'

Beaman, supra, and Cerra, supra, would come within that class of cases referred to in 31 Am.Jur.2d, Medical Testimony as to cause of disease, personal injury, or death, § 185, p. 754:

'There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of a causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish, such relation, uphold the view that such evidence, in conjunction with other evidence nonexpert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.'

Therefore, speculative expert medical testimony to show the causal connection between an injury and a disability is...