Skultety v. Humphreys

• Decision Date: 23 August 1967
• 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.
• Court: Oregon Supreme Court

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.

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 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 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.

'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.

'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.

'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 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, Damages § 106 (1965); Annotation, 81 A.L.R. 423 (1932).

We reaffirm the rule announced in the Odrlin case that future pain and suffering is a proper element of damages without proof that the injury is permanent. Arkansas Drilling Co. v. Gross, 179 Ark. 631, 17 S.W.2d 889, 894 (1929); Consolidated Coach Corporation v. Hopkins, 228 Ky. 184, 14 S.W.2d 768, 771 (1929); Kujawa v. Baltimore Transit Company, supra, 167 A.2d at 100; Colby v. Thompson, supra, 207 S.W. at 74; Wood v. Chicago, B. & Q. Ry. Co., 119 Mo.App. 78, 95 S.W. 946 (1906); Du Cate v. Town of Brighton, supra, 114 N.W. at 105. The statement to the contrary in Reid v. Yellow Cab Co., 131 Or. 27, 35, 279 P. 635, 67 A.L.R. 1 (1929), is expressly overruled, together with any like implications in other cases.

In the case at bar the court did not mention permanent injury in its instructions but told the jury that in determining the amount of general damages it could consider 'such pain, anxiety and discomfort which it is reasonably probable the plaintiff will suffer in the future' from the injury. ² No exception was taken to this instruction, and we think it was eminently proper. There was evidence that plaintiff would suffer pain and discomfort in the future, but no evidence that her injuries would be permanent.

At the conclusion of the testimony appellant moved the court to strike from the complaint the allegations of permanent injury, and also requested the court to instruct the jury that there was no evidence of permanent injury. The appellant also excepted to an instruction advising the jury the life expectancy of a person of plaintiff's age was 28.67 years and further instructing that such life expectancy 'should be considered by you in arriving at the amount of damages if you find the plaintiff is entitled to a verdict.' We think the court erred in each of the particulars alleged and that the combined errors require a reversal and a new trial on the issue of damages.

When it appeared that there was no evidence tending to prove that plaintiff's injuries were permanent, the court upon a proper request should have specifically withdrawn this issue from consideration by the jury. In Cook v. Kinzua Pine Mills Co., 207 Or. 34, 70, 293 P.2d 717, 733 (1956), and Denton v. Arnstein, 197 Or. 28, 52, 250 P.2d 407 (1952), we held that 'in any case where the evidence is insufficient to justify the submission of the issue of permanent injury to the jury, it is better practice for the court to take the question directly from the jury pursuant to a proper request therefor.' In the two cases cited we held that the error was not prejudicial because the instructions concerning the measure of damage mentioned only future pain and suffering. In this case the failure to withdraw the issue of permanent injury from the jury was compounded by the instruction that the plaintiff's life expectancy should be considered by the jury in arriving at the amount of damage if they found for plaintiff.

It is almost universally held that the admission into evidence of mortality tables in a personal injury case where there is no evidence of a permanent injury is reversible error. Pensacola Sanitarium v. Wilkins, 64 Fla. 407, 60 So. 128 (1912); Foster v. Village of Bellaire, 127 Mich. 13, 86 N.W. 383 (1901); Welstead v. Jim Ryan Construction Co., 160 Neb. 87, 69 N.W.2d 308, 312 (1955); L'Esperance v. Sherburne, 85 N.H. 103, 155 A. 203, 209 (1931); Dominguez v. Albuquerque Bus Co., 58 N.M. 562, 273 P.2d 756, 50 A.L.R.2d 414 (1954); MacGregor v. Rhode Island Co., 27 R.I. 85, 60 A. 761, 763 (1905); Tenney v. Rapid City, 17 S.D. 283, 96 N.W. 96 (1903); ...