National Dairy Products Corp. v. Durham

Citation154 S.E.2d 752,115 Ga.App. 420
Decision Date27 February 1967
Docket NumberNo. 42221,2,3,Nos. 1,42221,s. 1
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court

The finding that the collision caused by the defendants' negligence had proximately caused the aggravation, acceleration of growth and spread of the pre-existing, latent, dormant cancer of the plaintiff's intestate, was authorized by the medical evidence of the possibility of such causation, combined with non-expert evidence of the decedent's apparent good health prior to the collision and the onset of cancer symptoms almost immediately thereafter.

Jack R. Murdock, now deceased, brought an action against National Dairy Products Corporation and its agent, James Allen Hackett, for damages for personal injuries, inter alia, incurred as a result of defendant Hackett's alleged negligence in colliding with the rear end of Murdock's automobile, which was stopped at a red traffic signal. Upon Murdock's death while the action was pending, Mrs. Mary Murdock Durham, mother of and administratrix of the estate of Murdock, was substituted as party plaintiff. The petition was then amended so as to allege, inter alia, that the collision, on April 29, 1963, had thrown the decedent's body violently against his fastened automobile seat belt, placing sudden and severe pressure on all of his abdominal and pelvic organs, including the testicles and scrotum; that thereafter the decedent noticed extreme tenderness, soreness and swelling in his left testicle, which eventually had to be surgically removed; that this alleged sudden and severe pressure resulted in the acceleration and aggravation of a pre-existing embryonal carcinoma of the left testicle and its subsequent spread throughout decedent's body, resulting in his death on January 15, 1964. The case was tried before a jury, resulting in a verdict and judgment in favor of the plaintiff. Defendants appeal from the judgment of the court overruling their motions for a new trial and for judgment n.o.v.

J. Corbett Peek, Jr., Glenville Haldi, Atlanta, for appellants.

Smith, Ringel, Martin & Lowe, Sam F. Lowe, Jr., Meade Burns, Robert W. Beynart, Atlanta, for appellee.

FELTON, Chief Judge.

Our ruling is confined to the sole issue argued in appellants' brief, i.e., whether there was sufficient evidence to authorize the finding that the defendants' negligence caused an acceleration and aggravation of a pre-existing embryonal carcinoma of the left testicle, resulting in the eventually fatal spread of the disease throughout decedent's body.

Supporting this causal relation is various medical evidence, although not uncontroverted or absolutely conclusive. Dr. Edwin McDowell, decedent's personal physician, testified substantially as follows: That a collision such as was alleged would, in his opinion, almost unavoidably put pressure on all of the decedent's abdominal and pelvic organs; that such pressure in sufficient degree could possibly release bacteria from a pre-existing infection in one organ and cause its spread within or possibly beyond that organ; that, conceivably, pre-existing infection in the prostate gland could be transmitted down the spermatic cord to the epididymis; that people can have such infections without being aware of them, which was true in the decedent's case; that, in his opinion, the decedent's cancer originated in the left testicle and that it could have spread from there to other areas of the body both by the lymph channel and the blood stream; that he had originally diagnosed decedent's ailment as epididymitis, as evidenced by a swelling of the epididymis.

Dr. James Lea, Jr, testified substantially as follows: that there exist malignant tumors which lie latent and dormant without particularly growing or spreading, sometimes for years; that epididymis is an inflammation of the epididymis gland which could be brought on by a blow or pressure, not necessarily applied directly to the scrotum, but also to the lower abdomen, so as to temporarily obstruct from that area the blood or lymphatic supply or venous drainage; that epididymitis due to an infection would probably have no effect on a dormant latent embryonal carcinoma in the testicle, but that a blow or pressure causing epididymitis might conceivably squeeze the tumor cells into circulation and into adjacent areas; that, in his opinion, the collision had not directly caused the decedent's cancer, because, even if trauma could produce cancer, which is disputed, it would take longer to do so than the two or three days after the accident, at which time the evidence of the cancer-the swollen testicle-appeared; that a possibility exists, however, that, if cancerous cells were present at the time, trauma induced by pressure from a seat belt might have led to an inflammatory condition in the testicles, which, in turn, would lead to release of cancer cells into the local area, and to more distant parts of the body.

The above medical evidence is sufficient to establish the possibility of a causal relation, even if it falls short of showing probability. The cases requiring affirmative medical evidence of probability, such as Ladson Motor Co. v. Croft, 212 Ga. 275, 92 S.E.2d 103; Savannah River Lumber Co. v. Bush, 37 Ga.App. 539, 140 S.E. 899; Atkinson v. Fairforest Co., 90 Ga.App. 425, 83 S.E.2d 243; Atlanta Transit Co. v. Knight, 92 Ga.App. 469, 88 S.E.2d 738; Callaway Mills Co. v. Hurley, 100 Ga.App. 781, 112 S.E.2d 320 and cit., are distinguishable in that they involved issues of causation which, by the nature of the situation, could be resolved solely by expert medical evidence standing alone, in which cases the evidence must naturally be based at least on reasonable probability. 'It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation.' 135 A.L.R. 517. (Emphasis supplied) The medical testimony in the present case is not standing alone, however, but is supplemented by other, non-expert evidence. 'There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of a causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, nonexpert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and...

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  • Reynolds Const. Co. v. Reynolds
    • United States
    • Georgia Court of Appeals
    • July 14, 1995
    ...or human experience. It is a medical question of the sort that requires expert medical testimony. See Nat. Dairy Products Corp. v. Durham, 115 Ga.App. 420, 154 S.E.2d 752 (1967); Jordan v. United Ins. Co., etc., 158 Ga.App. 520, 521, 281 S.E.2d 286 (1981); see generally Cherokee County Hosp......
  • Zwiren v. Thompson
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    • Georgia Supreme Court
    • March 27, 2003
    ...200, 204, 345 S.E.2d 904 (1986); Maurer v. Chyatte, 173 Ga. App. 343, 344-345, 326 S.E.2d 543 (1985); National Dairy &c. Corp. v. Durham, 115 Ga.App. 420, 422, 154 S.E.2d 752 (1967). 9. Dyer v. Souther, 274 Ga. 61, 62, 548 S.E.2d 1 10. Op. at 503, 578 S.E.2d at 866. 11. Op. at 498, 578 S.E.......
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    ...Ins. Co. of America, 158 Ga.App. 520, 521, 281 S.E.2d 286 (1981) (action on insurance policy). See also National Dairy Prods. Corp. v. Durham, 115 Ga.App. 420, 154 S.E.2d 752 (1967). Even assuming that the general evidentiary requirement regarding the production of expert testimony does not......
  • Nixon v. Pierce Cnty. Sch. Dist.
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    • July 9, 2013
    ...precedent only). 12.See Knight, 316 Ga.App. at 600–01, 730 S.E.2d 78. 13.Zwiren v. Thompson, 276 Ga. 498, 501, 578 S.E.2d 862 (2003). 14.Nat'l Dairy Prods. Corp. v. Durham, 115 Ga.App. 420, 423, 154 S.E.2d 752 (1967) (emphasis supplied). 15.Id.;seeHodson v. Mawson, 227 Ga.App. 490, 492(4), ......
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