Schamoni v. Semler

• Decision Date: 24 April 1934
• Citation: 31 P.2d 776,147 Or. 353
• Parties: SCHAMONI v. SEMLER. [*]
• Court: Oregon Supreme Court

31 P.2d 776

147 Or. 353

SCHAMONI v. SEMLER. ^[*]

Supreme Court of Oregon

April 24, 1934

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Mildred Schamoni against Harry Semler, a dentist, to recover damages for injuries sustained by the plaintiff resulting from the alleged negligence of defendant in extracting some of plaintiff's teeth. From a judgment entered on a $25,000 verdict for plaintiff, defendant appeals.

Affirmed.

S. J. Bischoff and Frank S. Senn, both of Portland for appellant.

Thos H. Tongue, Jr., of Hillsboro, for respondent.

CAMPBELL Justice.

On March 10, 1932, a complaint was filed in which plaintiff alleged, in substance, that defendant was a duly licensed dentist, practicing his profession in Portland, Or.; that on November 21, 1930, plaintiff engaged defendant in his professional capacity to extract some of her teeth; that, in performing his work of extraction, defendant placed plaintiff in his operating chair and administered a complete anesthetic in the presence of defendant and his office nurse, no one else being present, and, while plaintiff was completely unconscious, defendant extracted several of her teeth; that he negligently permitted two broken parts of one of her teeth to pass into the trachea and to be inhaled into, and lodged in, her right lung; that he failed to inform her that the broken parts of the tooth had been absorbed into the trachea that she suffered severe pain and various pulmonary troubles by reason of said negligence, and has required treatment by physicians ever since; that her lungs became infected causing hemorrhages; that on October 27, 1931, during a paroxysm of coughing, she expelled from her right lung, two broken pieces of a tooth followed by several hemorrhages and discharges of pus; that her health has been permanently impaired.

To this complaint, after certain dilatory motions, defendant, on August 1, 1932, filed an answer admitting that he rendered the professional services alleged, but denied all other allegations of the complaint.

1. Appellant assigns as error the court's refusal to permit him to file an amended answer setting up the defense of a release executed by respondent for the alleged damages.

It appears that on April 15, 1931, respondent made a claim to defendant for the injuries alleged in her complaint, and, according to the allegations of the tendered amended answer, she at that time executed a written release in consideration of $105, "releasing defendant, and in full accord and satisfaction of any claim that plaintiff had against defendant." No written motion for permission to file the amended answer was ever filed, and it was not tendered into court until the morning of the day of the trial, April 10, 1933.

On March 7, 1933, appellant mailed a copy of his amended answer, together with a request that he enter into a stipulation that it might be filed, to respondent's counsel who refused to enter into such stipulation, and on March 21, 1933, so advised appellant's counsel. Counsel for appellant let the matter rest, and again on the afternoon of Saturday, April 8, 1933, notified respondent's counsel that he intended to move the court for permission to file his amended answer, but had not then and never has filed any written motion to that effect. The cause had been at issue since August 1, 1932. The appellant knew of, and, according to his tendered answer, had in his possession, the written release referred to, since April 15, 1931, yet he made no tender of that issue to the court until the morning of the trial. He offers no excuse whatever for the delay, nor was the issue of the release tendered in his original answer, nor was the proposed amended answer tendered before the cause was set for trial. When counsel for respondent examined the records of the cause, on Friday before the day of trial, and found no motion had been filed up to that time, he had a right to assume that appellant had abandoned his intention of moving the court for permission to file the amended answer.

The permission to file an amended answer after the time for answering has expired is largely within the discretion of the trial court, and the court, in exercising that discretion, must take into consideration the peculiar facts and circumstances of each particular case, and we are of the opinion that, under the facts and circumstances of the instant case, the court did not abuse his discretion. Oregon Code 1930, § 1-906, and see innumerable Oregon cases cited thereunder.

2. Appellant assigns as error the admission of opinion evidence in answer to hypothetical questions.

Respondent called as witnesses four practicing dentists of Portland, Or., who duly qualified as experts. Each of said experts was asked the following question and permitted to answer it in the negative, over the objection of appellant: "Q. Doctor, I will ask you in a case where a patient went to a dentist and was placed under a complete anesthetic or gas and one of the front teeth, two of her upper back teeth on the right side of her mouth, two of her lower back teeth on the right side of her mouth, one of her upper back teeth on the left side and one of her lower back teeth on the left side of her mouth (were extracted) and one of these teeth were allowed to pass down the throat of the patient and into her lung and the patient went home and was ill, and the patient was not informed, by the dentist of the loss of the tooth, I will ask you under those circumstances whether or not you would say that the ordinary care, skill and diligence used by the average, ordinary dentist under like circumstances in the locality, had been used?"

In his brief, appellant's counsel argues that permitting the expert to answer was an invasion of the province of the jury. He admits that it is perfectly proper to have experts testify as to the course of treatment that is usually followed in a particular dental operation, that the expert may state what is the usual and proper practice, but claims that the expert must not state that the practice outlined in the hypothetical question was improper.

An expert witness may testify whether the treatment and care administered by appellant, as outlined in the hypothetical question, was in conformity with that degree of care, skill, diligence, and knowledge which is ordinarily possessed by the average members of his profession in good standing in the same or similar localities. Darling v. Semler (Or.) 27 P.2d 886. That is the standard by which the care, skill, and knowledge of appellant in the instant case should be measured. It was still left to the jury to determine what weight it should give to the testimony of the experts. We can see no difference in asking an expert dentist such a question from asking an attorney what would be a reasonable attorney's fee in any particular case where the question of reasonableness of an attorney's fee was at issue, yet in such a case that is the very question that is asked of the lawyer who is called to testify on the reasonableness of an attorney's fee. No one ever heard of an objection being taken to such a question on the ground that it was trespassing on the province of the jury. Lippold v. Kidd, 126 Or. 160, 269 P. 210, 59 A. L. R. 875.

"It has sometimes been decided, and often assumed to be an inflexible rule of law, that an expert cannot testify to his opinion on the precise fact which is in issue before the jury. *** But it is evident that this supposed rule, when stated broadly as it often has been stated, involves great confusion of thought and leads to absurd consequences. It is certainly singular that a class of evidence which is admitted when it is only slightly pertinent should be rejected when it is of the highest pertinency. Irrelevancy is made a ground of admission and relevancy of exclusion. Such evidence invades the province of the jury no more than does direct evidence of an eyewitness to a decisive fact. In either case, if the jury are satisfied of the trustworthiness of the evidence it may be conclusive of the issue; but their duty is no more invaded in one case than in the other. Every expert opinion rests on an assumption of facts; if the opinion is given upon an hypothetical question, its weight depends wholly on the jury finding that the assumed facts have been proven; if it is based on the expert's own testimony as to the facts, the truth of this testimony is no less open to their belief or disbelief; and, in addition, the soundness of the opinion itself is to be determined by the jury in consideration of its apparent reasonableness or their confidence in the skill and trustworthiness of the witness, and of any contradiction from other experts." 11 R. C. L. 584.

It seems to us that the reasoning in the foregoing excerpt is unanswerable, and the modern trend of the court is to avoid absurdities.

Appellant relies strongly upon Patterson v. Howe, 102 Or. 275 202 P. 225. In that case a question was asked a physician, who was an...