Wynn v. Sundquist

• Decision Date: 10 June 1971
• Citation: 259 Or. 125,485 P.2d 1085,92 Adv.Sh. 1340
• Parties: Vernon WYNN, as Administrator of the Estate of Judith Wynn, Deceased, Appellant, v. Dr. Everett L. SUNDQUIST, Respondent.
• Court: Oregon Supreme Court

Page 1085

485 P.2d 1085

259 Or. 125

Vernon WYNN, as Administrator of the Estate of Judith Wynn Deceased, Appellant, v. Dr. Everett L. SUNDQUIST, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 7, 1971.

Decided June 10, 1971.

Don G. Swink, Portland, argued the cause for appellant. With him on the briefs were Bailey, Swink, Haas & Malm, Portland.

Richard Bryson, Eugene, argued the cause for respondent. With him on the briefs were Windsor Calkins, and Bryson & Robert, Eugene.

TONGUE, Justice.

This is an appeal by plaintiff from a verdict and judgment for defendant in an action for wrongful death resulting from alleged malpractice by defendant, a doctor.

Plaintiff's complaint alleged that decedent's husband requested defendant to examine and treat decedent for illness because of extreme nausea and vomiting; that defendant refused to come to decedent's house, but instructed decedent's husband to bring her to the parking lot behind his office, where defendant did not examine her personally, but had his nurse administer drugs by injection; that decedent then became more seriously ill and that her husband so informed defendant, who took no action, but told her husband to wait three or four hours; that two hours later, without direction by defendant, decedent's husband took her to a hospital, where she died of acute fulminating diabetes mellitus with acidosis.

Following the jury verdict that defendant was 'not guilty,' plaintiff moved for a judgment n.o.v. and also, in the alternative, for a new trial, based, among other things, upon alleged error in the admission of a 'report of investigation of injury to child' by Dr. Keith McMilan, as a medical investigator for the Oregon State Board of Health. That report involved the six- year-old child of the decedent and included the following statements under the following headings:

'Apparent circumstances of injury:

'Mrs. Gillis called to say a friend of hers, a teacher at Mt. Vernon Kindergarten, reported that in late May the child, Tony Wynn, came to school with bandaged hand. Teacher asked what was the matter. He told her he had been naughty and mommy burned his hand with iron.

'* * *

'Summary of investigation of injury:

'Teacher is not available at this time for questioning. Mrs. Gillis thinks there have been other injuries to child. Local doctors are being alerted to watch for this child.

'Disposition of case: For record only at this time.'

The motion for new trial was also based upon the following additional alleged error:

'In failing to grant a mistrial on the Motion of the Plaintiff, when the Court knew that juror No. 3, James A. Nell, had personal knowledge of the incident referred to in Exhibit No. 1 of the Defendant. Said juror stated under oath he would probably be influenced by that knowledge, all of which would be to the Plaintiff's detriment.'

Upon denial of the motion and entry of judgment for defendant, plaintiff filed a notice of appeal, accompanied by a 'designation of record' which did not designate 'all the testimony and all the instructions given and requested,' as permitted by ORS 19.074(2)(c), but designated only portions of the record, as also permitted by that statute. The designated portions included 'all the testimony, exhibits and evidence offered or received at the trial pertaining to the witness, Dr. Keith McMilan as a witness for the defense.' The designation also included, among other things, instructions and exceptions pertaining to that testimony and also the interrogation and colloquy between the court, counsel and one of the jurors. Plaintiff did not, however, file a 'statement of points on which he intends to rely,' as required by ORS 19.074(2)(b) to be filed except where all of the testimony and instructions are included in the designation of record.

Defendant made no objection at that time to this defect in the appeal. Plaintiff, as appellant, then filed an abstract and brief, in which the same two alleged errors were assigned (admission of the report and failure to grant a mistrial). In that brief plaintiff contended, among other things, that the report was not admissible either under ORS 43.370, relating to 'Entries in Official Records,' or under ORS 41.680--41.710, the 'Uniform Business Records as Evidence Act,' and cited cases to support that contention. Plaintiff also contended that the trial court erred in refusing to grant a mistaial for admitted prejudice by one of the jurors.

Defendant then filed a respondent's brief which made no attempt to answer appellant's brief on the merits of those assignments of error, but contended that the judgment of the trial court must be affirmed because appellant failed to file a statement of the points on which he intended to rely. Plaintiff-appellant then filed a motion for an order allowiong the assignments of error in his brief to stand as his statement of points and allowing additional time to defendant to designate further portions of the record and to file an answering brief on the merits. That motion was allowed by this court.

Defendant then designated additional portions of the record, including, among other things, the remaining testimony of Dr. McMilan Milan and plaintiff's Exhibit G. Defendant then filed a further brief in which he contends, with reference to the report in question: (1) that the record does not show that the report was admitted and plaintiff's assignment of error does not set forth the offer of the exhibit, the objection thereto and the court's ruling, as required by Rule 19 of this court; (2) that hearsay does not render official documents inadmissible and that the report was admissible under the 'official records' exception to the hearsay rule; (3) that any error was invited by plaintiff's offering of Exhibit G as an official report prepared by the same doctor; and (4) that 'plaintiff could not have been prejudiced by Exhibit 1,' for the reason that it 'only related or could relate to damages.' Defendant also contended that there was no error in denying a mistrial for alleged prejudice by one of the jurors.

1. The record shows that the 'report of investigation' was received in evidence.

With reference to defendant's first contention, we cannot overlook plaintiff's failure to comply with the clear requirements of both ORS 19.074(2) (b), requiring the filing in this case of a statement of the points on which he intended to rely, and Rule 19 of this court (now Rule 2.35), requiring that an assignment of error for failure to sustain an objection to evidence 'must set out Haec verba the pertinent portions of the record,' including (according to Appendix B under that rule) the question and the objection made, as well as the ruling of the trial court (although not specifically referred to in Appendix B). That rule goes on to provide that:

'* * * Assignments of error which the court can consider only by searching the record for the proceedings complained of will not be considered.'

On occasion, however, we have waived the strict compliance with the statutes and rules relating to appeals, except to the extent that they impose jurisdictional requirements. In our judgment, this is a proper case to do so. As stated, however, in Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 211, 358 P.2d 1062, 1065, 368 P.2d 737 (1962):

'Having said this much, we hasten to add that this ruling is not to be taken as an invitation to attorneys to disregard the statute or to hold its mandatory provisions lightly. They are intended to be strictly followed and the court expects members of the profession to govern themselves accordingly. Unlike the former statutes prescribing appellate procedure, the provisions of the new code are simple, expressed with admirable clarity and are easily complied with. It is difficult to conceive of an adequate excuse for an attorney to misunderstand their meaning or to fail to follow their directions.'

Because of the disregard of these statutes and rules by plaintiff's attorneys in this case and to insure more careful future compliance with these requirements, we deny costs on this appeal to plaintiff for the printing of appellant's brief. We also question whether, under these circumstances, plaintiff's attorneys can properly charge to their client the cost of printing a brief which does not comply with the rules of this court and for which costs have been denied, but do not pass upon that question at this time.

Upon examination of the record, however, we are satisfied that the report in question was received in evidence. Although plaintiff has not submitted to us or called to our attention any ruling by the trial judge to that effect, it appears from the record that the trial judge overruled plaintiff's objection that the report was hearsay on the ground that the autopsy report offered by plaintiff was also 'replete with hearsay.' In addition, the exhibit is stamped as 'Received' as defendant's Exhibit 1. Therefore, and since defendant does not deny that it was received in evidence, but contends only that plaintiff has not 'set forth' the court's ruling to that effect, we are constrained to hold that this exhibit was received in evidence.

(2) The 'report of investigation' was not admissible as an 'official record.'

Defendant contends that the 'report of investigation' was admissible as an 'official record' over objection that it was 'not only hearsay one, but it's hearsay two.' Thus, it is to be noted that the statements included in this report, as previously quoted, do not represent either facts of which the medical examiner had any firsthand knowledge or facts which represented findings as the result of any investigation made by him. On the contrary, these statements consisted of what Dr. McMilan had been told by another person (Mrs. Gillis), of what had been told to her by a second person (the teacher), of what had been told to her by a third person (the child)--thus constituting hearsay three times...