Reid v. Yellow Cab Co. , 131 Or. 27 ( 1929 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiff recovered judgment against defendant for injuries she received while riding as a passenger in one of defendant's cabs. The injury was afflicted on plaintiff as a result of a collision between the cab and a streetcar. A trial was had to a jury resulting in a verdict in plaintiff's favor in the sum of $3,500. Defendant appeals from the consequent judgment. Defendant assigns three errors only two of which require consideration. One error is based upon the admission of testimony of a physician called as a witness by plaintiff. He was allowed to testify over the objection of defendant as follows:

"Now, Doctor, did you have occasion to examine the plaintiff, Lucille Reid here, a week or 10 days ago, or such a matter?

"A. I did.

"Q. And that examination was made in your office?

"A. In my office.

"Q. I wish you would just tell the jury what took place there, and what the result of your examination disclosed, if anything.

"A. May I read from this record?

"Q. Was that made at the time?

"A. This is the official record of my office.

"Q. Yes.

"A. Mrs. Lucille Reid, 521 Platt street. I examined her on May 5th. I see here, 1926. She is thirty-one years old, married —"

Here defendant interposed an objection to any statements made by plaintiff to the doctor. Attorney for plaintiff insisted that the physician should be permitted to give a history of the case. The court permitted the doctor to continue.

"A. She is thirty-one years of age; her present weight is 139 pounds, and she gave her past weight as 150 pounds. She said she was in a taxicab that was in collision with a streetcar on June 3, 1925, between eleven and twelve o'clock a.m., and as a result of this collision that she received the following injuries: A cut on the top of her head, a general contusion of her body, a cut on her right knee, both knees were bruised, but the right one was cut; and she suffered from shock and nervousness; that she was taken in an ambulance, and taken to the St. Vincent's hospital, and there treated. She now complains of pain over the right side of her head, about the site of the injury, where she was hit on her head; and extreme nervousness."

The objection made to the testimony was stated as follows:

"We do object to any testimony from this witness as to any conversations had with the plaintiff, being self-serving, and statements made by the plaintiff to the doctor, not in the presence nor subject to examination by the defendant, and that it would be purely hearsay, and we would like to have our objection go to all of the testimony."

Defendant did not object to the doctor testifying to the results of his own examination and to him referring to his notes to refresh his memory. The other alleged error is the court's refusal to give a requested instruction concerning the degree of proof necessary to establish a permanent injury.

AFFIRMED — REHEARING DENIED. It was error for the court to admit the testimony regarding past events of the witness Dr. Alan W. Smith, consulted by plaintiff for the express purpose of qualifying himself to testify. Dr. Smith never treated plaintiff. There were two trials in the case and just before the first trial he was consulted by plaintiff at the request of her attorneys for the express purpose of qualifying him to testify. At the second trial he was again consulted for the same purpose. I think that his testimony wherein he was permitted to relate what the witness told him about how the accident occurred, about her past suffering and nervousness, was clearly incompetent. The majority of jurisdictions exclude what the plaintiff tells a physician under such circumstances as to the plaintiff's present condition where the doctor is not called by the plaintiff to be treated. The better rule is stated in 22 C.J., pp. 268 and 269:

"Narrative statements to a physician are to be rejected where they relate to facts not connected with diagnosis and treatment, such as the cause of an illness or injury, the circumstances under which an injury was received, or the instrument with which it was inflicted, or past sufferings of the patient. But where a statement to a physician, although narrative in character, relates to a matter which it is necessary or proper for him to know in order that he may accurately diagnose and properly treat the case, it may be shown."

"So, in Consolidated Traction Co. v. Lambertson, 60 N.J.L. 452 (38 A. 683), it was said that where declarations were made to a physician, not for the purpose of treatment, but to lead the physician or surgeon to form an opinion to which he might testify as a witness for the declarant, not only was the reason for credibility absent which would have been present had the patient applied for treatment, but instead, self-interest became ``a motive for distortion, exaggeration and falsehood. Hence, it is the better conclusion that declarations made under such circumstances are not competent evidence on behalf of the declarant'": Note to Shaughnessy v. Holt, (236 Ill. 485, 86 N.B. 256), 21 L.R.A. (N.S.) 826.

"It is plain that the statement by a party to a cause of his bodily and nervous symptoms made long after the occurrence of the accident to which he attributes them and for purposes connected with the preparation for trial of a suit in which his condition of health is material, and not made to a physician for the purpose of obtaining advice or treatment are not admissible in evidence in his own favor as proof of the truth of the matters stated":Cronin v. Fitchburg, 181 Mass. 202, 203 (63 N.E. 335, 92 Am. St. Rep. 408).

"If the statements were made to a physician not in attendance on the patient, but for the purpose of preparing him to testify, an opinion based thereon is not admissible, though an opinion based on an examination of the plaintiff during the trial, at the defendant's request, has been accepted, with a suggestion that the general rule of exclusion would have applied if the examination had been by the plaintiff's own witness alone, in preparation for trial": 11 R.C.L. 613, § 35.

"Statements of past sufferings, pain, or symptoms are not excluded by the necessity principle, for the necessity is equally the same for all internal conditions, whether past or present. They are, however, excluded by the principle of Guarantee of Trustworthiness (ante, § 1718), for they are not naturally caused by the existing pain or other symptoms, but, being deliberate accounts of past occurrences, are no better than statements of any other past events. They are, therefore, generally excluded. * * *

"There is in Massachusetts (and a few other jurisdictions) a modification of the preceding rule where the statements are made to a physician. Statements of past facts in the shape of the circumstances of the injury are, as elsewhere, ALWAYS REJECTED; but statements of past suffering and other symptoms in preceding stages of the illness are admitted when made to aphysician. * * *. This modification (of the hearsay rule) extends only to past sufferings and symptoms, and does not include the past external events attending the injury or illness": 3 Wigmore on Evidence, 2216, 2217, § 1722.

The authority to support the text cited by the erudite author is Roosa v. Loan Co., 132 Mass. 439. The physician testifying in that case was treating the party. A different rule governs that kind of a case from the rule controlling the instant case. The difference in the rulings of the various jurisdictions is whether a physician called by the plaintiff for the express purpose of qualifying himself to testify might repeat what plaintiff said to him regarding his suffering and nature of his injury. We think the better rule, as announced by the majority of cases, excludes statements made by the plaintiff regarding his past suffering. There is no authority that I have been able to find which admits statements made by plaintiff to a physician regarding the cause of the injury or the manner in which it was received or other details regarding the event in which plaintiff claims to have received the injury. The statement to Dr. Smith that she had been nervous was harmless because the doctor found from his examination, and so testified, that plaintiff was nervous. He explained in detail the tests he made in order to testify to that effect.

The objection made by defendant to the repetition by Dr. Smith of plaintiff's narration to him of the manner in which she received the injury, the cause of her injury and the nature of her suffering should have been sustained. But the evidence is probably harmless because the plaintiff herself testified directly to these injuries and to the other facts repeated by her to her witness Dr. Smith. There seems to have been no dispute as to the manner the injuries were received. The testimony of Dr. Smith might have been very damaging under some conditions and should have been excluded. A physician might be permitted under some circumstances, even where he is called by the plaintiff for the express purpose of testifying, to relate what plaintiff said about her suffering at that particular time but not her past suffering, and such should be admitted with great caution. A large discretion should be left to the trial judge, who should exercise great care to prevent as far as possible plaintiff's support of his case by what he has told a physician. Such statements are not made under oath, are self-serving and should be received with great caution.

The instruction on necessity of proving permanency of injury in order to justify including damages for future suffering in the verdict was correctly stated by the learned trial judge. He charged the jury in part:

"You are not to indulge in the realm of possibilities as to her injuries, but the probability of future suffering, proved by a preponderance of the evidence in the case, may be taken into consideration. Not the possible injuries, but what the evidence shows the probable injuries to be, if the injuries are to be permanent. The evidence must show that they are permanent."

The instruction sufficiently covered the instruction requested by defendant: Barron v. Duke, 120 Or. 181, 194 (250 P. 628).

The testimony of Dr. Smith in the instant case is not harmful. The judgment is affirmed.

McBRIDE, J., concurs.

AFFIRMED. REHEARING DENIED.

OBJECTIONS TO COST BILL OVERRULED.