Kennedy v. State Indus. Acc. Commission

• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; REDDING
• Citation: Kennedy v. State Indus. Acc. Commission, 345 P.2d 801, 218 Or. 432, 86 A.L.R.2d 1032 (Or. 1959)
• Decision Date: 30 October 1959
• Parties: , 86 A.L.R.2d 1032 Andrew L. KENNEDY, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of State of Oregon, Appellant.

Page 801

345 P.2d 801

218 Or. 432, 86 A.L.R.2d 1032

Andrew L. KENNEDY, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of State of Oregon, Appellant.

Supreme Court of Oregon, Department 1.

Argued Oct. 7, 1959.

Decided Oct. 30, 1959.

Thomas C. Enright, Asst. Atty. Gen., argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Owen E. McAdams, Jr., and Ray H. Lafky, Asst. Attys. Gen.

Berkeley Lent, Portland, argued the cause for respondent. On the brief were Peterson, Pozzi & Lent and Ralph Bolliger, Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL and REDDING, JJ.

REDDING, Justice pro tem.

This is an appeal by the State Industrial Accident Commission from a judgment based upon a jury verdict, awarding the plaintiff permanent partial disability equivalent to 65% loss of function of an arm for an unscheduled back injury.

This case grows out of an accident which occurred on August 29, 1955, while the plaintiff was employed subject to the provisions of the Workmen's Compensation Law. An accident claim was filed on September 8, 1955, which claim was accepted and plaintiff was paid for temporary total disability and the claim first closed on January 11, 1956, with no permanent disability award. The claim was reopened on the commission's own motion on September 21, 1956, treatment furnished, and temporary total disability payments made, and the claim was again closed on September 9, 1957, with a permanent partial disability award to the plaintiff equivalent to 30% loss of function of an arm for an unscheduled back disability. Plaintiff filed a claim for aggravation on December 23, 1957, and on January 16, 1958, the claim was again reopened and plaintiff's permanent partial disability award increased to 50% loss of function of an arm and the claim closed. Plaintiff filed a petition for rehearing and upon the denial thereof appealed to the circuit court. The jury by its verdict found that the plaintiff was entitled to an award of compensation for permanent partial disability equal to 65% loss of function of an arm for the unscheduled back disability.

The commission raises but two questions on this appeal. The first of these is raised under assignment of error number II, in which it is asserted the court erred in giving the following instruction:

'In this case you heard testimony from a medical witness or commonly called an expert witness, and an expert witness is allowed to give his opinion where other witnesses are not. Now, you are instructed that such opinion evidence is to be viewed and weighed by you with caution and you are not bound by the opinion of any expert witness but you are to give expert witness opinion such weight as you find it deserves along with all of the other evidence in the case.'

Paragraph (9) of ORS 41.900 provides that opinion evidence may be given in the following instances:

'The opinion of a witness respecting the identity or handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein.'

California Jury Instructions--Civil, Vol. 1, p. 89, gives the following as an approved instruction on opinion evidence by expert witnesses:

'The rules of evidence ordinarily do not permit the opinion of a witness to be received as evidence. An exception to this rule exists in the case of expert witnesses. A person who by education, study and experience has become an expert in any art, science or profession, and who is called as a witness, may give his opinion as to any such matter in which he is versed and which is material to the case. You should consider such expert opinion and should weigh the reasons, if any, given for it. (You are not bound, however, by such an opinion. Give it the weight to which you deem it entitled, whether that be great or slight, and you may reject it, if in your judgment the reasons given for it are unsound.)'

Risley v. Lenwell, 129 Cal.App.2d 608, 277 P.2d 897; Lemere v. Safeway Stores, Inc., 102 Cal.App.2d 712, 726, 228 P.2d 296, 305. Instructions of similar import but in somewhat different language have been approved in the following cases: Mid-Continent Pipe Line Co. v. Price, 203 Okl. 626, 226 P.2d 176; and Anderson v. Eggert, 234 Wis. 348, 391 N.W. 365.

No authority is cited, however, and research fails to furnish any, whether from jurisdictions such as California, where the court is permitted to comment on the evidence, or otherwise, for a trial court to instruct a jury, as was done here, that opinion evidence given by a doctor of medicine: '* * * is to be viewed the weighed by you with caution * * *.'

In Wilson v. State Ind. Acc. Comm., 189 Or. 114, 219 P.2d 138, 142, the trial judge instructed the jury:

'* * * that the testimony of experts is to be received and considered with narrow scrutiny and with much caution.'

This court, speaking through Mr. Justice Latourette, held:

'* * * Had defendant in this case excepted to such instruction on the ground that the court was invading the province of the jury, since the credibility of witnesses is exclusively a jury question, such an exception would have been well taken. The trial court has no business commenting on the evidence, and we disapprove of such practices; * * *.'

In Langford v. Jones, 18 Or. 307, 22 P. 1064, 1071, a malpractice case, the trial court, in referring to the testimony of physicians, surgeons and nurses, instructed the jury: '* * * such evidence, however, is to be received with caution * * *.' In passing upon such instruction, this court said:

'* * * If the court had instructed the jury not to consider the opinions of the medical experts as evidence, unless they found that the facts upon which the opinions were predicated, existed, as assumed, it would have been highly proper; but instructing them that such evidence was to be received with caution * * * was misleading. I think that character of evidence stands upon the same footing as any other.'

The instruction of the court in the instant case, in so far as it advised the jury that opinion evidence given by a doctor of medicine '* * * is to be viewed and weighed by you with caution * * *,' is clearly erroneous and constitutes reversible error.

The second point raised by the defendant has to do with the court's refusal to grant defendant leave to file an amended answer and will arise upon another trial and should therefore receive our consideration. Immediately prior to the start of the trial and again at the conclusion of the taking of evidence, the defendant moved to amend its answer by adding a further and separate answer consisting of the following two paragraphs:

'Paragraph numbered I reads:

'That on or about January 16, 1958, the defendant commission entered an order granting the plaintiff a permanent partial disability award of 50% loss of function of an arm for unscheduled disability.

'Paragraph numbered II reads:

'That since said award was made to the plaintiff for his permanent partial disability the physical condition has improved, so that the plaintiff no longer has a permanent partial disability equal to 50% loss of function of an arm for his unscheduled disability directly and proximately resulting from his injury of August 29, 1955.'

The allowance of the amendment sought by the commission would have permitted the jury to reduce the award which the commission made in its order from which the plaintiff appealed. It will be unnecessary to consider here or discuss further defendant's contention that the court abused its discretion in denying the commission leave to file an amended answer, because we think that it would have been error for the trial court to allow such amendment under the provisions of our Workmen's Compensation Law. ORS 656.278 provides:

'(1) The power and jurisdiction of the commission shall be continuing, and it may, upon its own motion, from time to time modify, change or terminate its former findings, orders or awards if in its opinion such action is justified.

'(2) There is no right of appeal from any order or award made by the commission on its own motion. An appeal may be taken from any order of the commission which diminishes or...