Hutchison v. Semler

• Jurisdiction: Oregon
• Parties: Jacob J. HUTCHISON, Appellant, v. Herbert J. SEMLER, Laurence R. Semler, Alysmae Nudelman and Helen Spivak, copartners doing business as Union Laboratory, Respondents.
• Citation: 361 P.2d 803,227 Or. 437
• Court: Oregon Supreme Court
• Decision Date: 14 June 1961

Page 803

361 P.2d 803

227 Or. 437

Jacob J. HUTCHISON, Appellant, v. Herbert J. SEMLER, Laurence R. Semler, Alysmae Nudelman and Helen Spivak, copartners doing business as Union Laboratory, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 8, 1961.

Decided May 10, 1961.

Rehearing Denied June 14, 1961.

See 362 P.2d 704.

K. C. Tanner, Portland, for appellant. On the brief were Tanner & Carney, Portland.

H. H. Phillips, Portland, for respondents. On the brief were Phillips, Coughlin, Buell & Phillips, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Jacob J. Hutchison, from a judgment which the circuit court entered in favor of the four defendants who constitute a partnership that operates a dental laboratory in Portland. The entry of the judgment was preceded by the return of a jury's verdict in the defendants' favor.

Details omitted, the complaint alleges that (1) the plaintiff was employed in the defendants' laboratory as a laboratory technician; (2) the defendants negligently failed 'to provide any outside windows or other means of cleaning the atmosphere' in the room in which the plaintiff worked; (3) the defendants failed to ventilate the room so as 'to render harmless dust and other impurities generated in the course of its manufacturing and laboring process carried on therein'; and (4) defendants failed to provide exhaust fans for the room. The complaint avers that as a result of those conditions the plaintiff inhaled 'dust and metal particles' and thereby became afflicted with silicosis. Other parts of the pleading allege the damages for which judgment was sought.

The answer denied not only all charges of negligence but also the allegation that the plaintiff was afflicted with silicosis. In addition, it averred that the plaintiff's 'purported cause of action is barred by the statute of limitations * * *.'

The plaintiff worked in the defendants' laboratory as a dental technician from the spring of 1953 to September 1, 1958. He instituted this action December 12, 1958. While in the defendant's employ he operated for periods each day two machines to one of which the witnesses referred as a sandblaster and the other of which they termed a grinding machine. The machines were used for finishing the surfaces of dental plates and bridges. The plaintiff swore that the grinding wheel of the grinding machine contained silica and that when he used it free silica and fine metal particles were forced into the air which he breathed. Further, he claimed that the operating parts of the sandblasting machine, although enclosed, discharged occasionally quantities of fine silica into the room's air.

The plaintiff-appellant presents the following three assignments of error:

(1) 'The court, during the examination of the witness Harry Semler, erred in overruling the objection to the introduction into evidence of Defendants' Exhibit 23 and in permitting their counsel to read the exhibit to the jury.'

(2) 'The court erred in giving the following charge to the jury:

'The defendants in this case have asserted as a defense what is known as the statute of limitations. * * *' (We will presently take note more fully of the instruction)

(3) 'The court erred in receiving in evidence over plaintiff's objections Defendant's Exhibits 26 to 31 inclusive.'

We will now consider the first of the above assignments of error. It will be recalled that the complaint charged as one of its specifications of negligence that the defendants failed to provide the room in which the plaintiff worked with 'any outside windows.' Actually the room had a window, as the plaintiff conceded, but it was not in the place where the plaintiff believed that ventilation was needed. When the plaintiff spoke to the defendants upon the subject they had contractors estimate the cost of installing a window but failed, so the plaintiff swore, to order construction at that time because the cost was more than they cared to pay. The plaintiff testified that after he quit the defendants' employment the window was installed. Since the jury visited the laboratory, its members saw the window. A photograph which is an exhibit shows the window.

Dr. Harry Semler, manager of the laboratory, testified that after the plaintiff complained about insufficient ventilation he ordered the installation of the window which the plaintiff requested and which the jury saw. He swore that he gave the order early in 1958 and before the plaintiff left the defendants' employ. The defendants do not own the building in which their laboratory occupies space and Dr. Semler testified that he ordered installation through the firm of building managers which represents the owners of the structure. The defendants produced three letters which constituted the correspondence that took place between Dr. Semler and the building managers preceding installation of the window. One of the letters was from Dr. Semler. It ordered installation. The other two were from the building managers and confirmed the order. When the letters were offered plaintiff's counsel objected, 'I don't think it is competent. It is hearsay.' At that point defendants' counsel declared that he was not offering the letters to prove the statements recited in them but merely to show that 'the letters were written.' The trial judge then inquired, 'I assume it's limited for the purpose of showing the window, arrangements for the installation of a window, was long before this incident of which complaint is made?' Defendants' counsel replied, 'That's the sole purpose.' Plaintiff made no further objection and thereupon the trial judge ruled, 'Well, for that limited purpose it may be received.'

The letters did not prove the installation of the window. The jury saw the window and the defendants freely admitted that the window had not been installed before the plaintiff left their employ. The plaintiff's testimony, however, indicated to the jury that when the defendants discovered that the installation of a window was costly they abandoned the project. In other words, the plaintiff sought to create the impression that the defendants sacrificed ventilation to pinch-penny tactics. Dr. Semler's testimony showed that the defendants did not abandon their purpose to install the window but, to the contrary, through correspondence with the building's manager ordered the window and its placement. His testimony also showed that the delay in installation was not the defendants' fault. If we deem the correspondence as real evidence we then have proof that the installation of the window was ordered timely. The letters were admissible--not for the purpose of establishing the truth of their contents but to show that at the pertinent time the installation of the window was ordered. Since the defendants conceded that the window was not in place during the period that the plaintiff says he became afflicted with silicosis the letters did not pertain to the issue of negligence. The letters, however, together with Dr. Semler's testimony indicated that the defendants were not guilty of the penurious propensity that the plaintiff sought to attribute to them. That purported base tendency should not have been injected into the case; but since it was, this evidence was the defendants' answer. Receipt of the letters for the limited purposes permitted by the trial judge did not violate the hearsay evidence rule. Marr v. Putnam, 213 Or. 17, 321 P.2d 1061.

The first assignment of error possesses no merit.

The second assignment of error, as we have stated, challenges an instruction which submitted to the jury the defendants' affirmative defense that the statute of limitation barred the plaintiff's recovery. The plaintiff does not contend that the instruction misstates the law, but claims that the record contains no evidence that the limitation period had run before he filed his action.

The instructions told the jury that the answer averred that the plaintiff's action 'was barred by the statute of limitations, in that the physical condition for which plaintiff seeks to recover damages in this case was in existence and known to plaintiff, or should have been known to him, more than two years prior to the commencement of the action.' It added that since the reply denied the averment just mentioned, 'the plaintiff has placed the burden upon the defendants to prove the allegations in their answer * * * by a preponderance of the evidence.' The instructions, after stating that the plaintiff instituted his action December 12, 1958, continued:

'* * * if you find under the evidence in this case that the plaintiff knew, or in the exercise of reasonable care should have known, of the existence of the physical condition for which he seeks to recover damages in this case for more than two years prior to the time he commenced this action, you should return your verdict in favor of the defendants * * *.'

The plaintiff claims that the period of limitations did not begin to run until he left the defendants' employ.

Shives v. Chamberlain, 168 Or. 676, 126 P.2d 28, was based upon a large of malpractice which the plaintiff made against a physician whom he had consulted over a period of several years and who had failed to discover that he was suffering from glaucoma. Hotelling & Walther, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 205, was an action for malpractice against a dentist who, in extracting plaintiff's impacted tooth, failed to remove from the tooth socket two parts of the root. The area where the two parts were left became inflamed, emitted pus and caused the plaintiff pain. Although the plaintiff returned to the dentist many times, the remaining parts of the tooth were not discovered. The charge of malpractice was based not only upon the extraction but also upon the subsequent treatment. When the patient in the Shives case went to another physician the latter...