Dean v. Carolina Coach Co. , 1974 N.C. App. LEXIS 2121 ( 1974 )

MORRIS, Judge.

Defendant seeks a new trial on the issue of damages. He concedes that unless his third assignment of error is sustained, he is not entitled to such relief since other alleged errors in the record standing alone would not be sufficient to warrant a new trial.

Defendant’s third assignment of error relates to a hypothetical question asked of Dr. Alexander Webb, Jr., one of plaintiff’s physicians. The question posed was as follows:

“If the jury should find from the evidence that is the competent evidence, and by its greater weight that on May 13th, 1971, plaintiff Graham W. Dean was employed as a bus operator for defendant Carolina Coach Company and that at said time was able to operate the bus without any pain or difficulty; that prior to May 13th, 1971, he on June 18, 1970, underwent surgery for removal of kidney stones and thereafter in February, 1971, another surgical procedure for the repair of a hernia; that he was certified as being able to return to work by Dr. Donald Whitaker on March 31st, 1971, and that he was involved in this accident on May 13th, 1971, and at that time was complaining of no pain and immediately after the accident he had pain in his right ankle, right clavicle area, cervical neck strain and pain in the abdomen in the area of the post-operative area, if the jury should find these facts to be true, do you have an opinion based upon reasonable medical certainty as to whether or not the accident of May 13, 1971, could or might have aggravated the pre-existing condition, that is the pre-existing surgical procedures, could or might have aggravated that condition and resulted in the necessary treatment that you gave him ?”

Over objection by the defendant, Dr. Webb was permitted to respond to this question in the affirmative and to express several opinions concerning plaintiff’s injuries. Defendant contends this was prejudicial error since Dr. Webb was allowed to express his expert opinions based on an incomplete and factually erroneous hypothetical question. We agree.

It is clear from the testimony of Dr. Whitaker as well as from the testimony of the plaintiff himself that the hernia had re-occurred some 30 days before the accident and was causing the plaintiff sufficient pain for him to seek medical assistance. No mention is made of these facts in the hypothetical question asked of Dr. Webb. This we find to be error.

“It is customary to incorporate in a hypothetical question the revelant facts in evidence which counsel hopes will be accepted as true by the jury, and to ask the witness his opinion based on such facts if the jury shall believe them to be facts. In framing a hypothetical question the following cautions should be observed:

1. Include only such facts as are in evidence or such as the jury will be justified in inferring from the evidence. It is not enough that the missing facts are expected to be supplied later.

2. Include all the material facts which will be necessary to enable the witness to form a satisfactory opinion. Although it is not necessary to incorporate all of the facts, the trial judge may properly exclude the witness’s answer if the question presents a picture so incomplete that an opinion based upon it would obviously be unreliable. ...” (Emphasis supplied.) 1 Stansbury, N. C. Evidence 2d, pp. 451-452, § 137, (Brandis Rev. 1973).

In the case at bar, the hypothetical question was factually erroneous and improper. The question does not refer to any “pre-existing” condition aside from the fact that there had been a kidney stone operation on 18 June 1970, and a hernia repair in February 1971. The other facts presuppose that the plaintiff was having absolutely no problem in the hernia area prior to the accident in spite of the uncontradicted evidence that he went to Dr. Whitaker complaining of pain in this area about one month before the collision. The omission of these facts from the hypothetical question resulted in the presentation of “a picture so incomplete” that an opinion based upon it was misleading to the jury and obviously unreliable. This was prejudicial error.

We find it unnecessary to address ourselves to other assignments of error presented by the defendant since, for the reasons assigned, we conclude he is entitled to a new trial bn the issue of damages.

New trial on damages only.

Chief Judge Brock and Judge Martin concur.