Walker v. West Coast Fast Freight, Inc.

• Decision Date: 22 May 1956
• Docket Number: No. 14788.,14788.
• Citation: 233 F.2d 939
• Parties: Dorothy S. WALKER, Appellant, v. WEST COAST FAST FREIGHT, Inc., a Corporation, and M. L. Burr, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

233 F.2d 939 (1956)

Dorothy S. WALKER, Appellant, v. WEST COAST FAST FREIGHT, Inc., a Corporation, and M. L. Burr, Appellees.

No. 14788.

United States Court of Appeals Ninth Circuit.

May 22, 1956.

Peterson & Pozzi, Nels Peterson Frank Pozzi, Burton J. Fallgren, Port land, Or., for appellant.

Koerner, Young, McColloch & Dezen dorf, John Gordon Gearin, Joseph Lar kin, Portland, Or., for appellees.

Before DENMAN, Chief Judge, and ORR and LEMMON, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from a judgment of the United States District Court for the District of Oregon which, as the result of a jury verdict, awarded appellant only $1,500 for injuries caused by the negligence of the appellees. Appellant seeks a new trial contending that she was improperly limited in the presentation of evidence of injury by the District Court's construction of the pretrial order, that prejudicial evidence was improperly admitted, that the jury was guilty of misconduct in awarding an inadequate verdict in light of her permanent injuries, and that the District Court erred in giving and rejecting certain jury instructions.

Appellant contends that the District Court erred in refusing to allow her to show pain and suffering in child birth and the necessity of shortening the gestation period to seven and one half months caused by her injuries. The District Court stopped her attorney in the midst of discussing this item of damage in his opening statement and refused to allow the presentation of evidence on the point because appellant had failed to disclose such a contention at the pre-trial conference. Appellant urges that the pre-trial order when construed with information known by appellees covers such an element of damage.

The pre-trial order lists as the injuries caused by the accident the following:

"That as a proximate result of the negligence of the defendants and each of them, plaintiff was forced off the road to avoid a head-on collision with the motor truck and caused this plaintiff severe personal injuries, among which were numerous bruises and contusions to the plaintiff\'s body, severe brain concussion and brain damage, severe physical and mental shock and physical and mental pain and suffering, a severe tearing, twisting and wrenching of the tendons, muscles, ligaments, bones, nerves and soft tissue of her neck, back, pelvic area, right hip and leg, injuries to her upper chest, and aggravation of pre-existing arrested tuberculosis, from all of which plaintiff was rendered sick, sore, nervous and distressed, that plaintiff has permanent injuries to her head, neck, back, right hip and leg, and the internal organs of her chest, and will be permanently afflicted with the results of aggravation and dissemination of said tuberculosis, and has been damaged in the sum of $75,000.00 general damages." Emphasis added.

Appellees' attorney knew that appellant was pregnant at least six months before the trial since she was unable to have X-rays taken at his request because of the advice of her obstetrician. However, for the hearing on appellant's motion for a new trial he executed an affidavit that:

"at no time did I have any knowledge that plaintiff sustained or was going to claim an impairment of the child bearing functions or difficulties in child bearing until plaintiff\'s attorney first attempted to advise the jury of such a claim at the time of trial."

Fed.Rules Civ.Proc. rule 16, 28 U.S.C. A. provides that a pre-trial order "controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice." One major purpose of such an order is to eliminate surprise by sharpening and simplifying the issues which must be tried. The District of Oregon has strictly required the disclosure of "all legal and fact issues" at the pre-trial conference since "surprise, both as a weapon of attack and defense, is not to be tolerated under the * * * Federal procedure" and the "rules outlaw the sporting theory of justice from Federal courts."¹

Here, in effect, appellant asked the District Court to require appellees' counsel to connect the appellant's pregnancy with the claimed injury of the pelvic area and the hip deducing that appellant would have difficulty in child birth and claim damages. If appellees' counsel had had the phrase from the pre-trial order "* * * a severe tearing, twisting and wrenching of the tendons, muscles, ligaments, bones, nerves and soft tissue of her * * * pelvic area, right hip and leg * * *" before him when he learned of her pregnancy, he might well have concluded that it was more probable than not that appellant might have some trouble in child birth and claim damages for her disability. However, this would have placed upon him the burden of preparing for a contention which might never arise and which would not be hard to overlook. It seems inconsistent with the purpose of clarification and simplification of issues to place upon a party the burden of connecting subsequently discovered facts with allegations buried in the pre-trial order and acting upon consequences which might come about.

Assuming appellant had no intention of catching appellees off guard at trial, she easily could have moved for an amendment to the pre-trial order to specifically include such a claim for damages. Even after appellant's counsel was stopped by the trial judge while he was discussing this issue with the jury, no such motion was made.

The District Court did not err in this respect.

The next specification of error concerns the admission by the District Court of testimony of Doctor Jones, a medical expert testifying in behalf of appellees who had examined appellant at appellees' request. Jones was asked to "relate to the jury what this lady appellant told * * * him * * * with reference to how she got hurt." Appellant objected that the answer was "not a history relating to the witness as a treating doctor." The objection was overruled, and Dr. Jones testified as to what appellant had told him. Her statement as recounted by Jones contradicted her testimony at trial in many important respects.

Appellant contends that allowing in this testimony was reversible error since

"A physician consulted by plaintiff in an action for personal injuries, for the purpose of qualifying him to testify, may not, in testifying, repeat what the plaintiff told him as to how the accident occurred, or as to past suffering or nervousness."²

However, Dr. Jones was appellees' medical expert who had examined appellant and the story he told was a statement used against her. A different situation is presented in such a case than where a personal-injury-plaintiff's doctor seeks to recount the plaintiff's self-serving hearsay. A statement as to how an injury occurred would not qualify under the "statements of physical condition" exception to the hearsay rule in either case,³ but a plaintiff's statement to defendant's doctor would be properly admissible against the plaintiff under the "admission of a party" hearsay...