Porter v. Headings
| Decision Date | 24 October 1974 |
| Citation | 527 P.2d 403,270 Or. 281 |
| Parties | Bette C. PORTER, Appellant, v. Harvey James HEADINGS, Respondent. |
| Court | Oregon Supreme Court |
Chester Scott, Independence, argued the cause and filed the briefs for the appellant.
Bruce W. williams, Salem, argued the cause and filed a brief for respondent.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON and SLOPER, JJ.
This is an action for personal injuries from an automobile accident near Corvallis. The jury returned a verdict in favor of plaintiff in the sum of $1,500. Plaintiff appeals from the resulting judgment.
Plaintiff was over seven months' pregnant at the time of the accident, in which she suffered lacerations of her face and knees, as well as contusions and bruises over her ribs and on her chest. She testified that her immediate concern after the accident was for the safety of the baby. She was taken to the hospital, where a nurse in the emergency room listened with a stethoscope for the baby's heartbeat.
The first error complained of involves the exclusion by the trial court of plaintiff's testimony that as the nurse listened for the baby's heartbeat she said to plaintiff that she 'couldn't hear it.'
Defendant concedes that this was error, but contends that it was not prejudicial because plaintiff's 'state of mind' before and after the birth of the child was established by other evidence, including her testimony as to her anxiety for the baby, was corroborated by the testimony of other witnesses. Plaintiff's doctor arrived at the hospital within approximately one-half hour of plaintiff's arrival. He testified that he checked the fetal heart tones and assured plaintiff that the baby was 'O.K.' The baby was later born as a healthy child.
We cannot say, however, that the exclusion of this testimony was not prejudicial. The statement of the nurse was not hearsay. It was not offered to prove the truth of the statement, but was offered as evidence on the issue of plaintiff's mental anguish for the safety of the baby, which was alleged in her complaint and which is claimed by plaintiff to have been the cause of her later fear of driving a car.
For those purposes the statement by the nurse that she could not hear a heartbeat from the baby was relevant and admissible, regardless of whether that statement was true. The jury could have found that this statement by the nurse caused plaintiff not only to be concerned about the safety of the baby, but to believe that the baby was dead, resulting in extreme mental anguish during the period until plaintiff's doctor assured her that the baby was 'O.K.' If the jury so found, it could also have found that this mental anguish was the cause of plaintiff's alleged subsequent fear of driving, if it believed that further testimony by the plaintiff.
Plaintiff also assigns as error the failure of the court to instruct the jury that the items of General damages which it was to consider included:
'Such sum as will reasonably compensate the plaintiff for any impairment of earning capacity resulting from the injury which it is reasonably probable the plaintiff has suffered in the past And will suffer in the future.' (Emphasis added)
This requested instruction was taken from Uniform Jury Instruction No. 30.02.
The court gave no such instruction as a part of its instruction on general damages, but instructed that as an item of Special damages the jury could consider
'The amount of earnings, if any, lost by the plaintiff Since the date of her injury.' (Emphasis added)
Defendant contends that this instruction was proper and sufficient and that it was not error to refuse to give plaintiff's requested instruction because plaintiff pleaded lost wages as an element of Special damages, with the result that plaintiff may not now complain that her loss of earnings since the injury should have been considered in the General damages alleged by her. As to loss of future earning capacity, defendant contends that the 'value' of plaintiff's future earning capacity was 'unclear' and speculative, as well as the 'extent of impairment of plaintiff's earning capacity' and the 'duration' of any such impairment.
Plaintiff's complaint alleged that plaintiff's injuries included:
'All of which were directly and proximately caused by the defendant's negligence and as a result of which the plaintiff has suffered general damage in the sum of $40,000.00.'
The special damages alleged included loss of wages in the sum...
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Roberts v. Mitchell Bros. Truck Lines
...that it should not be applied in the instant case." 270 Or. at 141-42, 526 P.2d at 578. (Emphasis added) See also, Porter v. Headings, 270 Or. 281, 527 P.2d 403 (1974). The rule of Crow, as delineated in Holland, is a rule which should be carefully applied. We believe, however, that this is......
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Perrotti v. Gonicberg
...a fetal heart-rate monitor and ultrasound, that everything was fine and that the baby was doing well. Moreover, in Porter v. Headings, 270 Or. 281, 527 P.2d 403, 404 (1974), one of the cases plaintiffs rely on, a pregnant woman, after being injured in a car accident, was told by a nurse in ......
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Jones v. Nava
...by the accident. Subsequent emotional harm resulting from the accident occurs “because of” that accident. See, e.g., Porter v. Headings, 270 Or. 281, 283–84, 527 P.2d 403 (1974) (court erred in excluding the plaintiff's evidence that automobile accident caused subsequent fear that plaintiff......
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Tavenner v. Figini
...to the jury, recognizing that the issue is that of future earning Capacity, not loss of past earnings. See also Porter v. Headings, 270 Or. 281, 527 P.2d 403 (1974). In our judgment, the evidence in this case was sufficient to entitle plaintiff to have the question of impairment of future e......