Lockwood v. McCaskill, 253

• Decision Date: 04 November 1964
• Docket Number: No. 253,253
• Citation: 138 S.E.2d 541,262 N.C. 663
• Court: North Carolina Supreme Court
• Parties: Clifford J. LOCKWOOD v. Earl McCASKILL and Charles Albert Macon, d/b/a C. A. M. Machine Company.

Page 541

138 S.E.2d 541

262 N.C. 663

Clifford J. LOCKWOOD v. Earl McCASKILL and Charles Albert Macon, d/b/a C. A. M Machine Company.

No. 253.

Supreme Court of North Carolina.

Nov. 4, 1964.

H. Parks Helms, Charlotte, for plaintiff appellee.

Kennedy, Covington, Lobdell & Hickman and Charles V. Tompkins, Jr., Charlotte, for defendant Charles Albert Macon, appellant.

MOORE, Justice.

Appellant assigns as error the admission of the testimony of plaintiff that he suffered an attack of amnesia on 20 May 1963, the overruling of appellant's objection to a hypothetical question and Dr. Thomas H. Wright's response thereto relating to plaintiff's amnesia, the denial of the motion to strike all evidence of amnesia, and the refusal to instruct the jury not to consider such evidence in arriving at a verdict.

Plaintiff testified in substance: Immediately following the collision he was momentarily unconscious; he had pain in his back and left hip, loss of feeling in his left leg, a headache with pain not only in his head but down in his neck, and a 'wobbly' feeling. For about 2 1/2 months he was treated by two orthopedic specialists; he suffered much pain in his back, hip and leg and periodically had unusually severe headaches--he had never had headaches to any extent before, none of this kind. He operated a service station in Charlotte, and his injuries and condition kept him away from his business until 1 May 1963 except for occasional short visits to supervise operations. While he was away one of his employees wrecked a car belonging to a customer and he was forced to pay the damages in the amount of $1200. He worked full-time at the station from May 1 to May 20, 1963, but his activities were limited. He worried about his financial difficulties in meeting payrolls and other expenses; these worries, together with his pain and headaches, caused him trouble in sleeping at night. On the morning of May 20 he had a very severe headache at the base of his skull and took two aspirin tablets; he remembered nothing from about 10 o'clock that morning until he regained consciousness in Albemarle, N. C., on the following day. He had never had an attack of amnesia before. He was placed in Charlotte Memorial Hospital under the care of a psychiatrist, Dr. Thomas H. Wright, Jr. For some time he was depressed and confused. On June 15 he was discharged. While in the hospital he had an inflamation of his urinary bladder, causing him to remain there for two or three days longer than would otherwise have been required. Dr. Wright continued treatment until December. At the time of the trial he was fully recovered.

A hypothetical question was put to Dr. Wright in which he was asked if had an opinion, based on the hypothesis, whether or not the accident was a 'contributing factor to his (plaintiff's) attack of amnesia and depression on May 20, 1963, and his inability to carry on his work and business.' In response Dr. Wright stated that he had an opinion and his opinion was that 'It may have had an influence on his condition.' He explained further: 'I feel like there were other contributing factors. * * * basically this man is an insecure person. He is a perfectionist. They worry more--a worrisome individual. The accident was a threat to his security, as well as the precipitating one is the loss of the automobile some several days before at which time his security was threatened and this is a factor. These are precipitating factors in an insecure individual.' On cross-examination Dr. Wright stated: 'This employee's * * * wrecking a car, * * * that financial burden, yes, seems to be one of the factors. I thought that was the precipitating factor. He * * * had an insecure feeling which, of course, existed long before this accident. * * * If he had been a normal person, this collision which resulted in some back pain * * * and some leg pain, would not have brought on amnesia.'

The hypothetical question covers approximately three pages of the record. It is not free of technical fault. Indeed, perfect hypothetical questions are a rarity in the trial of cases. The one in this case is not sufficiently objectionable to render it prejudicial.

Appellant's main contention is that the non-expert testimony is insufficient to support the inference that the attack of amnesia, which occurred three months after the accident, was a result of the acident and the injuries suffered therein, and that the testimony of Dr. Wright with respect to such cause and effect is speculative, declares it a mere possibility, is not a sufficient predicate for any recovery of damages by reason of the attack of amnesia and concomitant depression, and defendant was therefore prejudiced by the admission of the evidence relating to amnesia and depression.

Appellant cites 135 A.L.R., Anno.--Expert Evidence as to Cause--Sufficiency, pp. 516-546. From this annotation the following principles appear. (1) It appears to be well settled that expert medical testimony that a given accident or injury possibly caused a subsequent impaired physical or mental condition--indicating mere possibility or chance of the existence of the causal relation--is not sufficient to establish such relation. ibid., p. 517. (2) There is a division of opinion as to whether expert medical testimony of the probability of such causal relation is sufficient. ibid., p. 529. (3) There are a number of cases, however, which have held that expert medical testimony of the possibility of such causal relation, in conjunction with nonexpert testimony indicating that such relation exists (although not sufficient by itself to establish the relation), is sufficient to establish the causal relation. ibid., p. 532. We note that no North Carolina cases are cited or discussed in this Annotation or in the volumes of 'Supplemental Decisions.'

The matter is also discussed in 20 Am.Jur., Evidence, as follows:

'An expert witness' view as to probabilities is often helpful in the determination of questions involving matters of science or technical or skilled knowledge. Expert testimony may be given in terms of an opinion that something might, could or would produce a certain result. It is necessary, however, that the facts upon which the expert bases his opinion or conclusion permit reasonably accurate conclusions as distinguished from mere guess or conjecture. Expert opinion testimony should not be allowed to extend to the field of baseless conjecture concerning matters not susceptible of reasonably accurate conclusions. An expert's opinion must be in the terms of the certain or probable, and not of the possible. Such witness is entitled to give his best judgment or opinion on the matter under inquiry, but not give answers which are mere guesses. * * * The allowance of opinion testimony of experts is, however, addressed to the discretion of the trial court, and under particular circumstances more or less conjectural opinions have been admitted, especially in cases calling for expert medical testimony.' ibid., § 795, pp. 667, 668.

'A very liberal practice is indulged in permitting opinion testimony of experts on matters in the filed of medical practice. A duly qualified physician may state, upon the basis of facts set forth in proper hypothetical questions, * * * his opinion as to the nature of the disease or disability from which a person is or was suffering, as to the facts and causes which probably produced, or might have produced such condition, as to how injuries or wounds were inflicted * * *.' ibid., § 862, pp. 722, 723.

'Expert medical opinion should not be allowed to extend to...