McGuire v. Davis

• Decision Date: 01 March 1971
• Docket Number: No. 29205.,29205.
• Citation: 437 F.2d 570
• Parties: Don H. McGUIRE et al., Plaintiffs-Appellees, v. Emmett Julius DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 570 (1971)

Don H. McGUIRE et al., Plaintiffs-Appellees, v. Emmett Julius DAVIS, Defendant-Appellant.

No. 29205.

United States Court of Appeals, Fifth Circuit.

January 5, 1971.

Rehearing Denied and Rehearing Denied March 1, 1971.

C. James Jessee, Jr., Shoob, McLain & Jessee, Atlanta, Ga., for defendant-appellant.

Bobby Lee Cook, A. Cecil Palmour, Cook & Palmour, Summerville, Ga., John K. Morgan, Chattanooga, Tenn., Morgan & Garner, Chattanooga, Tenn., for plaintiffs-appellees.

Before BELL, THORNBERRY and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied March 1, 1971.

THORNBERRY, Circuit Judge:

This is an appeal from a judgment in a Georgia diversity action for injuries arising out of an automobile collision between a Georgia defendant and Tennessee plaintiffs. The district court rendered judgment for plaintiffs after the jury had returned verdicts in their favor in the aggregate amount of $148,000. Defendant appeals, and we affirm.

On November 23, 1966 an automobile driven by Emmett Julius Davis collided at an intersection in Marietta, Georgia with an automobile operated by Mrs. Frances E. McGuire in which her two children, Michael McGuire and Randall McGuire, were passengers. On January 10, 1968 Mrs. McGuire, Randall and Michael filed a complaint in district court seeking to recover from Davis damages for personal injuries sustained in the collision. Donald H. McGuire, the husband and father of the other plaintiffs, filed a complaint in which he sought to recover for medical expenses, property damages, and loss of consortium. Because the matter was tried under the admission in open court that defendant Davis was liable for the damages sustained by each of the plaintiffs, the sole issue confronting the jury was the proper amount to be awarded. On July 15, 1969, the jury returned verdicts of $18,000 for Mr. McGuire, $40,000 for Michael, $50,000 for Mrs. McGuire, and $40,000 for Randall. After the court entered judgments based on the verdicts, Davis filed a motion for new trial, which was denied.

In this appeal Davis raises twenty-one points of error, which we discuss under seven categories. In essence, appellant argues that the verdicts and judgments are excessive, contrary to the law and the evidence and unsupported by the evidence, and that the court erred in admitting certain testimony and documents over his objection, in refusing to give his requests to charge, in giving erroneous instructions to the jury and in refusing to grant a new trial. After careful consideration of the record, we conclude that there is no merit in these contentions.

I. Testimony

Appellant alleges that the district court erred in admitting testimony of certain witnesses over the objection that it was speculative, conclusionary, based upon hearsay and the opinions of others, not based on competent medical findings and unsupported by the evidence. The witnesses involved are Dr. Edwin Chobot, Jr., M.D., Dr. William E. Rowe, M. D., Dr. Maurice Canon, M.D., and Dr. Howard Ihrig, Ph.D. We note at the outset that each of the witnesses examined and prescribed treatment for one or more of appellees, and thus they cannot be considered merely as expert witnesses whose examination was limited to obtaining information to be used solely for the purpose of testifying as an expert in the case.

Davis first contends that the court, over his objection that the testimony was speculative, erroneously permitted Dr. Chobot to testify that there were indications that Mrs. McGuire had suffered post-traumatic convulsions. We disagree. The testimony fell within the well-settled proposition that a physician who has examined an injured party may describe what he has seen and give his expert inferences therefrom;¹ it was therefore admissible.

Secondly, appellant asserts that the court erroneously permitted Dr. Chobot to testify as to the presence of pain in Mrs. McGuire's coccygeal area over his objection that the testimony was based upon the patient's own complaint of pain. A review of the record reveals that when Dr. Chobot exerted a slight amount of pressure on the coccygeal area of Mrs. McGuire's spine, she responded in a manner that clearly indicated to the physician that she was experiencing pain. Since a doctor may testify from personal observation of his patient that he was suffering pain,² we do not believe the lower court erred in admitting this testimony.

Davis avers, thirdly, that Dr. Chobot should not have been permitted to testify that Michael McGuire suffered brain damage since the testimony was based, appellant alleges, "on the grossest type of hearsay." Contrary to appellant's assertion, the record indicates that Dr. Chobot based his opinion that, as a result of the collision, Michael suffered a permanent neurological deficit not upon hearsay but upon "* * * my observations and my testing of this boy. * * * Accordingly, we believe this third assertion is without merit.

Appellant next argues that the court erred in permitting Dr. Rowe to testify as to the existence and cause of phlebitis in Mrs. McGuire's left leg over his objection that the testimony was hypothetical and based upon hearsay and conclusions. We disagree. As a qualified medical expert with a firsthand knowledge of the material facts, Dr. Rowe was well within permissible bounds in stating his opinion and inferences. For the same reason we find no merit in appellant's argument that the court erred in permitting Dr. Canon to testify that Mrs. McGuire "* * * had some disc problem at that time and she still has some evidence of some continued irritation of the nerve roots."

Finally, Davis contends that the court erred in permitting Dr. Ihrig to testify about a perception motor problem incurred by Michael over his objection that the testimony was "irrelevant, immaterial and a conclusion without any supportive evidence and that there was no evidence that, if Michael had such a problem, it related to the collision of November 23, 1966." We perceive no merit in this contention. Appellees were attempting to demonstrate the damages they sustained as a consequence of appellant's admitted negligence. Testimony indicating that Michael had developed a perception motor problem as a result of the collision clearly was both relevant and material to the case. Contrary to appellant's assertion, there was ample supportive evidence of the problem's existence. Dr. Ihrig's identification of the perception motor difficulty was based upon (a) Michael's performance on a psychodiagnostic battery, which included the Bender-Gestalt and the Wechsler intelligence scale for children, human figure drawings, and the Peabody picture vocabulary test, and (b) the doctor's personal observations of Michael in a variety of play situations. In addition, there was testimony linking the perception motor problem to the collision.

II. Documents

Davis contends that the lower court erred in admitting medical expense statements over his objection that the statements were summaries of bills and did not sufficiently identify when and what services were performed. The statements in question — hospital and doctors' bills — were identified by Mr. McGuire, and each doctor testified as to the services that he rendered and as to the hospitalization. Each statement bore either the signature of the doctor or his secretary, or the letterhead or signature of the hospital authority. Because the medical statements were sufficiently identified and supported by oral testimony, we are unable to conclude that their admission was error.³

III. Instructions

Appellant asserts that the district court's instructions on the issues of damages, proximate cause and pain and suffering were incomplete, misleading and confusing. A review of the charge in its entirety convinces us that the charge was sufficiently clear to be understood by jurors of ordinary intelligence and that the jury would have had no difficulty in applying it to the evidence and thereby reaching the proper conclusion. We have not found, nor has appellant pointed to, any specific aspect in which the charge was prejudicially incomplete. We conclude there is no merit in this contention.

IV. Charge

Davis next urges that the district judge committed reversible error in charging the jury that "The amount of your verdicts will be based solely on the amount you think the plaintiffs have been damaged under the instructions which I give you in this charge."⁴ (Emphasis added). Davis argues that the emphasized language confused and misled the jurors, causing them to believe that they had carte blanche authority to award any amounts they "thought" plaintiffs should have, without regard to the evidence, and that they were free to guess and speculate as to the amounts.

In determining the propriety of a charge we are required to view it as a whole; "(p)ortions of a charge are not to be scrutinized on appeal apart from their context as isolated verbal phenomena."⁵ When measured against this standard, appellant's contention fails for want of merit. The emphasized language was qualified by the phrase "under the instructions which I give you in this charge." The record reveals that in his following instructions the judge made clear to the jurors the standards applicable to their determination of the damages. A reading of the charge in its entirety, then, clearly refutes the assertion that the jurors could have believed that they were free to disregard the evidence and to guess and speculate as to the amounts of damages. The inclusion of the emphasized language, though perhaps not desirable, did not constitute reversible error.

V. Requests to Charge

Appellant asserts that the district court committed reversible error in refusing to give his Requests to Charge Numbers 1, 2, 3, 4, 5, 6 and 7. Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., provides, "At the close of the evidence or at such earlier time as the court reasonably directs, any party...