Meislahn v. Demorest

• Decision Date: 06 October 1980
• Docket Number: No. A7711,A7711
• Citation: 48 Or.App. 631,617 P.2d 322
• Parties: Alice R. MEISLAHN, Appellant, v. Edwin W. DEMOREST, Respondent. 16789; CA 14111.
• Court: Oregon Court of Appeals

Page 322

617 P.2d 322

48 Or.App. 631

Alice R. MEISLAHN, Appellant, v. Edwin W. DEMOREST, Respondent.

No. A7711 16789; CA 14111.

Court of Appeals of Oregon.

Argued and Submitted March 24, 1980.

Decided Oct. 6, 1980.

John R. Bakkensen, Portland, argued the cause for appellant. With him on the briefs were James N. Westwood, and Miller, Anderson, Nash, Yerke & Wiener, Portland.

Jack L. Kennedy, Portland, argued the cause for respondent. With him on the brief were Allen Reel and Kennedy, King & McClurg, Portland.

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

Plaintiff brought this action for assault and battery against defendant for an attempted sexual assault which allegedly occurred while the parties and their respective spouses were vacationing in Hawaii. The jury returned a verdict in favor of defendant.

Defendant and plaintiff's husband belonged to the same golf club in Portland and had previously made plans to play golf together in Hawaii in January, 1976, during the Pro-Am tournament at the Keauhou Golf Course. On arrival, both couples took accommodations near the golf course.

A few days after they arrived in Hawaii, the two couples played a round a golf as a foursome. After completing their round of golf, defendant invited the plaintiff and her husband to his condominium for cocktails. During the ensuing hour and one half, plaintiff consumed two drinks while plaintiff's husband and defendant consumed substantially more, to the point that plaintiff's husband either became very sleepy or passed out. Because it was getting late and her husband was to play in the tournament the next day, plaintiff wanted to leave and defendant agreed to drive them to their hotel a short distance away.

According to plaintiff's version of the facts, which from this point on varies from defendant's in nearly every particular, she helped her semi-conscious husband into the back seat of defendant's automobile and took the front passenger seat while defendant drove. During the five minute ride to plaintiff's hotel, defendant made several advances toward plaintiff which she resisted. After arrival at the hotel, plaintiff became separated from her husband, who made his way unassisted to their room. Defendant then pursued the plaintiff about the hotel and made at least three attempts to attack her. In one of these attacks, he threatened to rape or kill her, bent her backwards over a railing and tore her clothing. Plaintiff testified that when defendant pressed himself against her she felt an erection.

Defendant testified, on the contrary, that the ride to plaintiff's hotel was uneventful and that on arrival at the hotel, plaintiff thanked defendant for a nice evening and that she and her husband made their way into the hotel while defendant remained in his vehicle before returning to his condominium.

As a result of the claimed assault, plaintiff alleged that she sustained physical injury as well as "permanent psychological injury," including emotional upset, introversion and alcohol addiction.

On appeal, plaintiff first contends that the trial court erred in admitting into evidence five sets of hospital records regarding plaintiff's treatment, both before and after the January, 1976, incident. In each case, plaintiff's objection was on the ground that the exhibits were either cumulative of oral testimony concerning plaintiff's treatment or were irrelevant to the issues in the case or both.

Because plaintiff claimed that defendant's attack upon her caused her psychological and emotional injury as well as alcohol addiction, defendant was entitled to offer evidence that her claimed conditions pre-existed the incident and were therefore not caused by it or were, at least, not caused by the incident to the extent claimed. Gallagher v. Portland Traction Co., 181 Or. 385, 391, 182 P.2d 354 (1947). While plaintiff does not maintain that defendant is precluded from offering any evidence on these subjects, she contends that these particular records should not have been admitted because they contained irrelevant matter. With the exceptions noted below, her objections were to the whole exhibit, were general in nature and, as such, would not require exclusion unless the documents contained no relevant material.

As the supreme court stated in Gallagher, supra :

"It is plaintiff's contention that the Multnomah County Hospital record in question, relative to plaintiff, commencing on December 23, 1931, and extending for a period of 15 years, is not admissible in its entirety on account of many irrelevant matters contained therein and to which specific objection was made.

"The trial court properly called on counsel to point out the particular parts of the hospital record which were objectionable. It was not the duty of the court to examine a record extending over a period of years and to sift out the wheat from the chaff. Plaintiff does not contend that the hospital record is not authentic.

" * * *

"Most of the objections to the admission of the hospital records were of a general nature and avail nothing on appeal. (Citations omitted.) As said in American Oil etc. Co. v. Foust, 128 Or. 263, 274 P. 322, a general objection to the testimony as a whole does not avail if some part thereof is admissible * * *." 181 Or. at 390-92, 182 P.2d at 356. Also see Biegler v. Kirby, 281 Or. 423, 426, 574 P.2d 1127 (1978).

The records in the present case did contain irrelevant matter, but in each case plaintiff was afforded an opportunity, which she exercised, to examine the records and make specific objections to the irrelevant portions. ¹ The only specific items which plaintiff challenged as irrelevant were the nurses' notes, charts, electrocardiograms, and the results of reinforcement therapy and various tests given plaintiff in her treatment at Raleigh Hills Hospital for alcoholism.

While plaintiff mentioned the above items, she did not request to have withdrawn any specific portions of that hospital record, but instead objected to the exhibit as a whole.

" * * * When an objection is made to a voluminous document such as the * * * file here, the objecting party has the duty to inform the court with particularity which portions of the document are inadmissible. * * * " State ex rel. Juv. Dept. v. Robinson, 31 Or.App. 1097, 1102-03, 572 P.2d 336, 338 (1977). (Emphasis supplied.) Here, plaintiff's objection to the documents did not inform the court with sufficient particularity as to which portion she was challenging. At trial, plaintiff testified about her hospitalization for alcoholism and her reinforcement treatments. Other than plaintiff's vague assertion that the results of her EKG's and other tests would "confuse the jury," we are not shown and do not see how they were prejudicial to her case.

Plaintiff also objected to some of the records as being cumulative of unobjected-to oral testimony. An objection to evidence as being cumulative is addressed to the discretion of the trial court. Gen. Constr. Co. v. Ore. Fish Comm., 26 Or.App. 577, 586-87, 554 P.2d 185 (1977); Simmons v. Holm et al., 229 Or. 373, 406, 367 P.2d 368 (1961). We find that there was no abuse of discretion.

In her second assignment of error, plaintiff contends that the trial court erred in rejecting her offer of proof during her rebuttal case of a psychiatrist's testimony concerning possible sexual aggressiveness of impotent men.

In her case in chief, plaintiff called as a witness a Mr. Grimshaw, an acquaintance of the defendant. He testified:

" * * *

"Q Did you ever have a conversation with Mr. Demorest regarding this incident in Hawaii?

"A An offhand conversation, yes.

"Q Will you tell the jury what the conversation was?

" * * *

"A Um, well, he was not very kind in his words about Mrs. Meislahn and disclaimed any part of it.

"Q Did he say anything to you about why this could not have...