Skultety v. Humphreys

• Court: Supreme Court of Oregon
• Citation: 247 Or. 450,431 P.2d 278
• Parties: Ethel C. SKULTETY, Respondent and Cross-Appellant, v. Bessie E. HUMPHREYS, Appellant, and Raymond E. Dungan, Sr., Defendant.
• Decision Date: 23 August 1967

Page 278

431 P.2d 278 247 Or. 450 Ethel C. SKULTETY, Respondent and Cross-Appellant,
v.
Bessie E. HUMPHREYS, Appellant,
and
Raymond E. Dungan, Sr., Defendant. Supreme Court of Oregon, In Banc. Argued and Submitted at Pendleton May 2, 1967.
Decided Aug. 23, 1967.

[247 Or. 452]

Page 279

Frederic P. Roehr, Portland, argued the cause for appellant. With him on the brief were Vergeer, Samuels, Cavanaugh & Roehr, Portland.

Harold A. Fabre, Pendleton, argued the cause for respondent. With him on the brief were Fabre & Collins and Leeroy O. Ehlers, Pendleton.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE, REDDING ^* and FORT ^*, JJ.

McALLISTER, Justice.

This is a personal injury action arising from a three-car highway accident in Umatilla county. The jury found for plaintiff against defendant Humphreys and exonerated the defendant Dungan. Defendant Humphreys appeals from the judgment for

Page 280

plaintiff, and plaintiff cross-appeals against defendant Dungan, who made no appearance in this court.

The appellant's first assignment of error alleges that the court erred in (a) refusing to strike from [247 Or. 453] the complaint the allegation of permanent injury, (b) refusing to instruct the jury that there was no evidence of permanent injury, and (c) in giving an instruction concerning plaintiff's life expectancy.

Plaintiff was 44 years old at the time of the accident. She testified that her neck was jerked suddenly backward by the impact, that she developed severe headaches and intense pain in her neck, and head, that she consulted a physician, was given medication and physical therapy, including traction, and was referred to a physical therapist who gave her further physical therapy treatments. Plaintiff testified that at the time of the trial, over a year and a half after the accident, she was not able to do any lifting or heavy work connected with her job or household duties, and that she still suffered headaches and pain from time to time for which she took medication.

Plaintiff's physician testified concerning her future suffering and disability as follows:

'Q. What sort of limitations, if any, do you expect Mrs. Skultety to have in her future because of these injuries?

'A. Well, in observing her through this year and a half that I have treated her, and judging according to that, I would feel that she would have some residual impairment based on this year and a half of observation. I believe she is incapacitated to a certain extent; and according to her pattern over the past year and a half I would feel that will continue into the future. I cannot give you any time on this, but I would think that she will be incapacitated in the future.

'Q. Would that be definitely or indefinitely in the future?

'A. I couldn't say.

[247 Or. 454] 'Q. Do you have any opinion as to the permanency of this condition of Mrs. Skultety?

'A. Well, again, in observing her, I would think that she will be disabled in the future. I cannot give you the time interval however.

'Q. To what extent, Doctor, in your opinion, would you expect Mrs. Skultety to have some disability in the future? What do you expect her to experience because of her condition?

'A. I cannot give you that. In terms of time?

'Q. No; what she would experience.

'A. What she will experience. I am sorry. Well, based again on this past year and a half I will say she will continue to have some degree of pain, and she will be limited to a certain extent in terms of the use of her upper extremities, perhaps, and neck. I think she has shown some disability now with that. She does work; however, she states to me that it's working that definitely does aggravate this. * * *

'Q. Now, Mr. Fabre questioned, in some degree, the limitations in the future. Is it possible that there will be some limitation in the future?

'A. Is it possible? Yes, it is possible.

'Q. But is it probable?

'A. I would say that the probability, according to what I have seen previously, it's probable that we will have some degree of limitation.

'Q. Now, for what period of time?

'A. I can't say.

Page 281

'Q. In other words, it could end at any time? Is that correct?

'A. It could.

'Q. It could end tomorrow?

'A. It's possible.

[247 Or. 455] 'Q. If she would do any number of things that a normal active person of her age would do, continue to do throughout her lifetime, she may trigger this thing again?

'A. Yes, she may.

'Q. And would you think that would be a usual and normal reaction.

'A. I would think it would be.

'Q. Doctor, when someone strains their neck from some of these activities, maybe stepping suddenly off, would you expect that kind of strain to persist over a long period of time, such as has been the case with Mrs. Skultety?

'A. I wouldn't expect it to persist like this.

'Q. And when do you expect these whiplash injuries to persist like this?

'A. I don't think you can predict those at all.'

The doctor also testified that X-rays taken at the outset of treatment, just before trial, and in the interim, were 'normal in all respects,' and that there was 'a high degree of subjectivity' in plaintiff's symptoms.

At the outset we wish to emphasize the distinction between future pain and suffering and permanent injury. They are not the same and the failure at times to distinguish between them may have caused some confusion in our cases. ¹ In the context of personal injury litigation a permanent injury is generally defined as one which will last during the life of the injured person. Kujawa v. Baltimore Transit Company, 224 Md. 195, 167 A.2d 96, 89 A.L.R.2d 1166 (1961); Colby [247 Or. 456] v. Thompson (Mo.App.), 207 S.W. 73 (1918); Stahlberg v. Brandes (Mo.App.), 299 S.W. 836 (1927); Sykes v. Republic Coal Co., 94 Mont. 239, 22 P.2d 157, 160 (1933); Du Cate v. Town of Brighton, 133 Wis. 628, 114 N.W. 103 (1907). In Perry v. Pickwick Stages of Oregon, 117 Or. 598, 605, 243 P. 787 (1926), this court said that permanent injury includes Ex vi termini future pain and suffering. Although permanent injury will usually include future pain and suffering, the reverse is not true; there may be future pain and suffering without permanent injury. Odrlin v. Dugan, 137 Or. 140, 142, 1 P.2d 599 (1931).

It is, of course, well settled that future pain and suffering is a proper element of damages for personal injuries. Odrlin v. Dugan, supra; Rugenstein v. Ottenheimer, 70 Or. 600, 140 P. 747 (1914); 22 Am.Jur.2d 155,...