Troj v. Smith, 67--28
| Decision Date | 26 April 1967 |
| Docket Number | No. 67--28,67--28 |
| Citation | 199 So.2d 285 |
| Parties | Walter J. TROJ, Appellant, v. Hampton SMITH, Gene Walters d/b/a Walters Bulk Service, and Fred J. Woods and Lem P. Woods, jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
William A. Harmening, of Kirkland & Johnson, Orlando, for appellant.
John W. Boult, of Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for appellees.
Appellant, Walter J. Troj, plaintiff below, appeals from a final judgment entered in his favor pursuant to a jury verdict of $6,500.00. Appellant is only arguing the issue of damages.
This case originated from a Minute Book entry, which was our Case No. 7045, rather than a final judgment. Subsequently, the proper judgment was entered and the briefs filed in Case No. 7045 were authorized to be used in the current case, which is number 67--28.
Plaintiff-appellant Troj received injuries when his vehicle, which was stopped at a traffic light at a Tampa intersection, was rear-ended by thr tractor-trailer owned by defendant-appellee Walters and driven by defendant-appellee Hampton Smith.
The case went to trial where appellant obtained a favorable directed verdict on negligence. The extent of appellant's damages remained the only issue to be tried.
The evidence showed that appellant was injured on August 20, 1964. He was first examined and treated on August 25, 1964, by Dr. Stanford, an orthopedist in Orlando, Florida. Then he went under the care of Dr. Spencer Way from September to about November, 1964. In November of 1964, the plaintiff went to Dr. Leeds, a neurosurgeon, and in December of 1964 he went to Dr. Constantine in Merritt Island. Subsequently, the plaintiff went to Dr. Bechtel from about Aprill to June of 1965, and in June of 1965 he went to Dr. Chester Thompson, another neurosurgeon. According to the brief of the appellees, none of these Florida doctors were called upon by the appellant to testify at the trial.
The depositions of Doctors Homza and Foley, who treated appellant in Bridgeport, Connecticut, were read into evidence. Doctor Foley testified that appellant had a neck sprain and a sprain of the low back. Doctor Homza testified that the accident herniated certain discs in the region of appellant's neck.
Dr. Irving J. Sherman testified by deposition that his diagnosis showed that appellant had 'cervical disc pathology and might have lumber disc pathology as well.' Dr. Sherman was then asked whether he had an opinion within the bounds of reasonable medical certainty as to the cause of the patient's condition which he had found. The doctor stated, 'Yes, although I must specify that this opinion is on the basis of a history given to me by the patient.' The Opinion given by the doctor was that appellant's condition was caused by a trauma sustained in an automobile accident which occurred on August 20, 1964. This testimony was proffered and excluded because Dr. Sherman was not considered a treating physician.
The sole point involved on this appeal is whether the trial court erred in excluding from evidence Dr. Sherman's opinion on the ground that he was not a treating physician.
The plaintiff contended that his employment of Dr. Sherman was for the purpose of medical treatment and not for legal purposes.
The First District Court of Appeal, in an opinion by the then Chief Judge Carroll, in the case of Marshall v. Papineau, Fla.App.1961, 132 So.2d 786, discusses the reasons and the law applicable thereto as to why a doctor, testifying as a medical expert, who was not the treating physician, cannot testify where his conclusions of the medical injuries are based on, or partly on, opinion evidence given to him as a history of the case.
In Marshall, it was held that the medical witness was a treating physician as he saw the injured person a few minutes after she was injured and he treated her while she was in the hospital.
The opinion stated:
'In support of this contention the appellant in his brief has cited and quoted from decisions from Iowa, Minnesota, and Texas, recognizing the...
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Marine Exploration Co., Inc. v. McCoy, 74--657
...appellee. Appellants cite three cases as support for their contention: Marshall v. Papineau, Fla.App.1961, 132 So.2d 786; Troj v. Smith, Fla.App.1967, 199 So.2d 285; and, Bondy v. West, Fla.App.1969, 219 So.2d These cases stand for a well-recognized proposition of the law of evidence, namel......
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Bertone v. State
...on examination and the history as given by the patient. Marshall v. Papineau, Fla.App., 1961, 132 So.2d 786. See also Troj v. Smith, Fla.App., 1967, 199 So.2d 285. The objection to such testimony is that it is essentially hearsay, being based upon information as related by the patient to th......
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Bartholf v. Westside Automotive, Inc., ZZ-133
...Bondy v. West, 219 So.2d 117 (Fla.2d DCA 1969), disapproved on other grounds, Hall v. Haldane, 243 So.2d 571 (Fla.1971); Troj v. Smith, 199 So.2d 285 (Fla.2d DCA 1967), reh. denied.2 Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472, 475 (1940); Marine Exploration Co. v. McCoy, 308 So......
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Ross v. State, 72--438
...other hand, an 'examining' physician who is presumably consulted with litigation in view is not allowed so to testify. Troj v. Smith, Fla.App.2d 1967, 199 So.2d 285; Bondy v. West, Fla.App.2d 1969, 219 So.2d ...