Lyster v. Metzger, s. 37983

• Decision Date: 17 March 1966
• Docket Number: Nos. 37983,38035,s. 37983
• Citation: 412 P.2d 340,68 Wn.2d 216
• Court: Washington Supreme Court
• Parties: David K. LYSTER, Appellant, v. John Arthur METZGER and Jane Doe Metzger, his wife, John Arthur Metzger, Trustee for the Sorrento Hotel, the Sorrento Hotel, John Doe doing business as Sorrento Hotel, and Ed C. Metzger, Inc., Respondents. David K. LYSTER, Plaintiff, v. John Arthur METZGER and Jane Doe Metzger, his wife, John Arthur Metzger, Trustee for the Sorrento Hotel, the Sorrento Hotel, John Doe doing business as Sorrento Hotel, and Ed C. Metzger, Inc., Appellants, Otis Elevator Company, Respondent.

Page 216

68 Wn.2d 216

412 P.2d 340

David K. LYSTER, Appellant, v. John Arthur METZGER and Jane Doe Metzger, his wife, John

Arthur Metzger, Trustee for the Sorrento Hotel, the Sorrento

Hotel, John Doe doing business as Sorrento Hotel, and Ed C.

Metzger, Inc., Respondents.

David K. LYSTER, Plaintiff, v. John Arthur METZGER and Jane Doe Metzger, his wife, John

Arthur Metzger, Trustee for the Sorrento Hotel, the Sorrento

Hotel, John Doe doing business as Sorrento Hotel, and Ed C.

Metzger, Inc., Appellants,

Otis Elevator Company, Respondent.

Nos. 37983, 38035.

Supreme Court of Washington, Department 2.

March 17, 1966.

John R. Simmons, Seattle, for appellants.

Jack E. Hepfer and Bruce Maines, Seattle, Bateman, Reed, McClure & Moceri, Roy Moceri, Seattle, for respondents.

LANGENBACH, Judge. ^*

Appellant David K. Lyster sued to recover damages for injuries he allegedly sustained during the overtraveling of the elevator in the Hotel Sorrento in Seattle, March 10, 1960. The Otis Elevator Company (herein called Otis) was made a third-party defendant inasmuch as it had serviced the elevator in the hotel. Respondents sought an indemnity from Otis in event of a judgment for appellant.

At the close of the testimony, the court granted a motion to establish respondents' liability as a matter of law. It also granted a motion of dismissal of Otis as a matter of law. The question of appellant's damages was the sole matter submitted to the jury. It returned a verdict for him in the sum of $35,000.

Upon post-trial motion for a new trial, the court granted it on five specific grounds, unless appellant accepted a reduction to $20,000. This was not acceptable, so the new trial was granted. Appellant has appealed and the respondents have cross-appelaed as to the dismissal of Otis. These will be considered in their respective order.

Appellant assigned as errors the five grounds on which the new trial was granted.

Appellant was an Air Force colonel, 45 years old. He was a passenger in the Hotel Sorrento elevator the evening of March 10, 1960, when it overtraveled its landing and hit the bottom of the pit. He sustained neck and back injuries and was shaken. He had difficulty getting out of bed the next morning. Two days later, his business in Seattle being finished, he flew back to Ogden, Utah, his air base. He received incidental treatment and tranquilizers. He lost only 3 days from work. He had been athletic, hunted, fished, swam and golfed. After the accident, such activities caused him pain and much discomfort.

He had received cursory treatment from Air Force doctors. February 3, 1961, he first consulted Dr. Swindler in Ogden. He was seen by this doctor September 12, 1961, and January 31, 1964, thereafter. X rays were taken on each occasion, as well as on March 12, 1960, when he arrived back at his base. He was examined by three orthopedic doctors who took substantially the same history of him, his injuries and subsequent treatment.

Dr. Glloyd examined appellant for the respondents, although he testified for the appellant in his case in chief. Dr. Swindler examined him on four occasions, and Dr. O'Neil examined him once, but had conferred with Dr. Swindler by mail and had referred him to Dr. Rankin, a neurologist, who reported his findings back to Dr. O'Neil.

The essentials of these separate examinations of appellant may thus be summarized:

Dr. Glloyd: Appellant apparently suffered dorsal lumbar and cervical spine strain as the result of the March 10, 1960, accident. The main limitations are along recreational lines--hunting, fishing, swimming, bowling and golfing; he was in excellent health before the accident. He has tenderness in back of neck and in his back and numbness in legs; hypesthesia in left foot. Diagnosis: X rays showed slight spurring 6th and 7th cervical vertebrae; low back mild hypertrophic spurring. He suffered dorsal lumbar and cervical spine strain in this accident. Difficult to determine direct relationship between present symptoms and the accident. No evidence of residual nerve root irritation or compression; no evidence of herniated disc or permanent disability; probable he doesn't have a disc in low back. In case of nerve root involvement, patient is referred to neurologist. Not a malingerer, more a psychological or emotional reaction.

Dr. Swindler: From findings and X rays of March 12, 1960, February and September, 1961, and January, 1964, appellant has defect in intervertebral disc at L--5 and S--1 intervertebral space and probably L--4 and L--5 space involvement of nerve roof left side as it enervates left leg muscles. He incurred injury to disc between L--4 and L--5 and certainly between L--5 and S--1 and ruptured disc was responsible for symptoms and findings when examined. It is a physical disability and impairment of the intermuscular skeletal system. Treatment is difcult and conservative--back support and physical therapy of some kind. If he develops paralysis or weakness in the lges, surgery is required.

Dr. O'Neil: Appellant has sprain in upper back and neck; sprain of lower back and nerve damage. Strain does not necessarily tear tissue, sprain does; a sprain is more serious than strain. Appellant sustained multiple soft tissue injuries, March 10, 1960; has permanent partial disability and aggravation of pre-existing arthritis by injury. Disc was herniated or torn. X rays showed narrowing of disc between L--5 and S--1 which caused pressure and irritation of nerve root; this will not improve except by lower level of activities, by precaution and back support and exercises. He consulted Dr. Rankin concerning neurological examination and report. Dr. O'Neil prescribed certain exercises and medications by mail; this is usual in his practice.

Dr. Rankin, neurologist: From electromyographic electronic tests, appellant had nerve root syndrome. Two nerves were damaged, one on each side where disc is. Ruptured intervertebral disc at lumbosacral interspace, and damaged disc at L--4 and L--5 interspace. A progressive process, unless treated, will get worse. Reported test findings to Dr. O'Neil and recommended treatment.

All these doctors found objective symptoms bearing upon the injuries of appellant in the course of their examinations. They all examined the various X rays and their conclusions and diagnoses showed very little material variations.

Dr. Stewart of the Air Force was called to testify concerning Air Force regulations. He was examined in chambers as to the purport of his testimony. Later the same questions were permitted before the jury, over respondents' objections. His testimony is reported herein in conjunction with one ground for granting the new trial.

(A)n order granting or denying a new trial is not to be reversed, except for an abuse of discretion. (Citing case.) This principle is subject to the limitation that, to the extent that such an order is predicated upon rulings as to the law, such as those involving the admissibility of evidence or the correctness of an instruction, no element of discretion is involved. (Citing cases.) A much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying it. (Citing case.) Johnson v. Howard, 45 Wash.2d 433, 436, 275 P.2d 736, 739 (1954).

Accord, Coleman v. George, 62 Wash.2d 840, 384 P.2d 871 (1963); and Worthington v. Caldwell, 65 Wash.Dec.2d 251, 396 P.2d 797 (1964).

Inasmuch as the assignments of error are based upon the five grounds for granting the new trial, they will be set out seriatim, and discussed in that order.

1. Error in allowing Dr. O'Neil to relate appellant's history and base his medical opinion on hearsay history when Dr. O'Neil was not a treating doctor, but was hired by appellant for sole purpose of examining him in order to testify at trial. On one occasion (January 31, 1964), Dr. O'Neil, at the request of appellant's attorney, examined appellant. Over objection, Dr. O'Neil was allowed to testify as treating physician that, in his opinion, appellant had some permanent partial disability in back. The court cited Peters v. Department of Labor & Indus., 36 Wash.2d 266, 217 P.2d 607 (1950).

Dr. O'Neil's testimony was summarized above. The Petersen case, supra, noted the applicable rule to be that, as an exception to the hearsay rule, a doctor who treats a patient and later becomes a witness may testify as to his medical conclusions, which may be based substantially on subjective symptoms (or in the realm of hearsay); on the other hand, a doctor who examines a patient merely for the purpose of qualifying as a witness may not testify as to his medical conclusions based upon subjective symptoms described by the patient; such violates the hearsay rule. The doctor is limited in his testimony to objective findings and the answering of hypothetical questions.

Objective symptoms, in ordinary cases, are those within the independent knowledge of the doctor, because they are perceptible to persons other than a patient. Subjective symptoms are those perceived only by the senses and feelings of a patient. The doctor must be told of them because he cannot himself perceive them. Hinds v. Johnson, 55 Wash.2d 325, 327, 347 P.2d 828, 830 (1959).

All three of the orthopedic doctors, as well as the neurologist, found objective symptoms concerning the appellant's condition and its causation.

The testimony of Dr. O'Neil was properly admissible. The history of appellant had already been detailed for the jury by appellant himself, by Dr. Glloyd, who examined appellant for the respondents, and by Dr. Swindler, who had treated him four times. Certain objective symptoms were related by Dr. O'Neil. This was not a legally sufficient ground for granting a new trial.

2. Error in allowing Dr. Stewart, flight surgeon, Air Force, to testify with reference to future loss of flight pay.

As part of appellant's deposition (which was read into the record by respondent...