Smith v. Jacobsen
| Decision Date | 26 October 1960 |
| Citation | 356 P.2d 421,224 Or. 627 |
| Parties | John H. SMITH, Respondent, v. Melvin L. JACOBSEN, Appellant. |
| Court | Oregon Supreme Court |
James B. O'Hanlon, Portland, argued the cause for appellant. With him in the briefs were Mautz, Souther, Spaulding, Kinsey & Williamson and James H. Bruce, Portland.
Philip A. Levin, Portland, argued the cause for respondent. On the brief were Leo Levenson, Samuel Jacobson and Pozzi & Wilson, Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and KING, JJ.
This is an action for damages for personal injuries suffered by the plaintiff when stuck by defendant's automobile in a marked crosswalk in Portland, Oregon.
The case was tried by a jury and verdict was rendered in favor of the plaintiff. Defendant appealed after his motion for a new trial was denied.
On the evening of December 20, 1957, at approximately 6 p. m., the plaintiff was walking north on Third avenue, south of the intersection with Pine street. That intersection of Third and Pine streets was controlled by red and green traffic lights and 'Wait' and 'Walk' pedestrian signals. Third avenue was a one-way street, all traffic moving south. Pine was a one-way street, all traffic moving east.
When plaintiff arrived at the south curb of Pine street, the pedestrian signal showed 'Wait.' After the signal changed to 'Walk,' he looked to his left, saw the traffic stopped and proceeded to cross Pine street. After he had crossed the center of the street, he was struck by defendant's car.
Defendant was driving south on Third avenue. He was driving in the left lane of traffic. He stopped for the red light at the intersection of Third and Pine and proceeded to make a left turn onto Pine street after the traffic light turned green. It was while defendant was making this left turn that plaintiff was struck.
The plaintiff was taken to St. Vincent's hospital, suffering primarily from an injury to his left knee, his left elbow and from concussion, nervousness and shock.
He was seen the next morning by Dr. Howard L. Cherry, an orthopedic specialist, and thereafter was treated by him. He remained in the hospital until January 1, 1958. He was given sedatives, was X-rayed, and a cast was put on his left leg before he left the hospital.
The jury, by their verdict, found the defendant guilty of negligence and the plaintiff free from contributory negligence. This was apparently a proper determination of those issues, as the defendant does not raise those questions on this appeal. In fact, in his closing argument defendant says: So we need concern ourselves no further with the question of liability.
The defendant bases his appeal upon five assignments of error which we will consider without quoting them verbatim, but giving them substance only.
The complaint in this case did not allege a fracture of the left knee in exact words. It did not use the word 'fracture.' The complaint did allege 'a torn cartilage and ligaments in the left knee,' and it did allege, among other things: 'bruises and contusions to his head, body and limbs, a tearing, twisting and wrenching of the muscles, tendons, ligaments, bones, nerves and soft tissues of his body and limbs * * * and has sustained permanent injuries * * *.'
X-rays were taken of the left knee the evening of the accident, December 20, 1957, and the next day, December 21, 1957, and again on September 29, 1958, by plaintiff's doctors, and on May 28, 1958, by defendant's doctors. They all read these X-rays to show no fracture of the knee, except that Dr. Cherry thought the September 29 X-rays showed a depression which indicated a fracture, and the morning of the trial, when re-examining the various X-rays taken under his supervision, Dr. Cherry discovered what he claimed to be a fracture of the tibia of the left knee in the earlier X-rays, that had previously been overlooked.
It was to Dr. Cherry's testimony regarding this fracture that assignment of error No. 1 was directed.
Assignment of error No. 2 was directed at the trial court's failure to grant a mistrial because the fracture evidence was allowed.
Assignment of error No. 3 was that the court erred in permitting plaintiff to amend his complaint by interlineation to allege the fracture. These first three assignments of error will be considered together.
The Oregon statute regarding amendment of pleadings is set forth in ORS 16.390:
'The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause; and in like manner and for like reasons may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading to or proceeding to the facts proved.' (Emphasis supplied.)
Under this section considerable latitude has been allowed in making the various types of amendments. It has been left largely to the discretion of the trial court in determining whether the amendments were in the furtherance of justice and whether they took the adversary by surprise. Bramwell v. Rowland, 123 Or. 33, 42, 261 P. 57; Davis v. Springer, 128 Or. 582, 275 P. 600; Lancaster v. May, 194 Or. 647, 243 P.2d 268.
Another rule of law has been set forth in a number of Oregon cases, referring to the discretion of the court to allow a complaint to be amended to conform to the facts proved, provided the amendment does not substantially change the cause of action, and that rule is set forth by Mr. Justice Millard in the recent case of Wood v. Southern Pacific Co., 216 Or. 61, 72, 337 P.2d 779, 784, as follows:
'Before such amendment is permitted, evidence upon which to base it must have been received without objection.'
Mendenhall v. Harrisburg Water Co., 27 Or. 38, 42, 39 P. 399; Bishop v. Baisley, 28 Or. 119, 127, 41 P. 936, 937; Tracy v. City of Astoria, 193 Or. 118, 129, 237 P.2d 954; 71 C.J.S. Pleading § 285f, p. 619.
In the case of Wood v. Southern Pacific Co., supra, the plaintiff attempted to prove damage to his arm, when no such damage or injury to his arm was alleged or mentioned in any form in the complaint. The testimony would indicate that the plaintiff knew of the claimed condition of his arm when the complaint was filed, and the defendant had absolutely no notice of any claim for arm injuries or damage to the arm. Objections were timely made. There is no claim of any other evidence in the record in that case of arm injuries.
In the case at bar the plaintiff's complaints from the time of the accident were principally, in fact, almost exclusively, complaints of pain, soreness and injury to the knee of his left leg. Injury to the knee of the left leg was alleged, and defendant's doctor examined him for that same injury. The plaintiff in this case had no knowledge of the fracture, and there is no evidence that his attorneys or his doctor discovered the fracture until the morning of the trial. It differs materially in that respect from wood v. Southern Pacific Co., supra.
In the present case there were various pieces of evidence regarding fracture of the knee received in evidence without objection. In the hospital record received in evidence without objection, injury to the left knee was shown, but the statement of Dr. Rees, radiologist, indicates no bone injury. Also in Dr. Cherry's file of the case, which the defendant himself introduced in evidence, is the statement of the intern who examined the plaintiff immediately after the accident: 'Fracture to tibial head.' All the X-rays, including the ones taken immediately after the accident, showing the fracture were received in evidence without objection.
Dr. Cherry on direct examination, speaking of later examination of plaintiff, testified as follows:
There was no objection whatever made to the above question and answer. The next question asked was:
'Mr. O' Hanlon: I move that reference to the fracture be stricken for the reason that it was leading. They come up here in court and said there was a torn ligament. There is no evidence of any fracture and I move that it be eliminated from the case. It is outside the plea.
'Mr. O' Hanlon: I will object to him asking the doctor that question.
'The Court: Motion denied, exception allowed.
'Mr. Wilson: Doctor, when was the determination made by the radiologists that a depression was there and that a fracture existed?
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...damaged and the cost to repair it would be at least $4,000. Gray cites as authority to amend a verdict form the case of Smith v. Jacobsen, 224 Or. 627, 356 P.2d 421. Neither this case nor cases later citing it as authority for amending pleadings allowed an amendment at this stage of the cas......
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