Kobmann v. Ross , 374 Mich. 678 ( 1965 )

374 Mich. 678 (1965) 133 N.W.2d 195

KOBMANN
v.
ROSS.

Calendar Nos. 46, 47, Docket Nos. 50,350, 50,351.

Supreme Court of Michigan.

Decided March 1, 1965. Rehearing denied May 10, 1965.

George L. Ginger (U.S.A. Heggblom, of counsel), for plaintiffs.

Johnson & Campbell (Reginald S. Johnson, of counsel), for defendant.

DETHMERS, J.

Plaintiff sued for injuries allegedly resulting from defendant's negligence in application of a permanent wave solution to her hair so that it ran onto her scalp, neck, ears, eyes and face. A jury returned a verdict of no cause for action. Immediately following the verdict her husband sued for medical expenses, et cetera, incurred in connection with his wife's injury and obtained service on defendant as he was leaving the courthouse to return to his residence in Florida. On defendant's motion this action was dismissed. Both plaintiffs appealed and the appeals are combined for presentation here.

Plaintiff wife had submitted to physical examination by a doctor hired by defendant for that purpose. He made a written report to defendant's representative. Plaintiff sought to have it introduced into evidence to show what she had told the doctor about her previous and present physical condition and what he had found. It was excluded. We think it should have been, as self-serving, within the meaning of O'Dea v. Michigan Central R. Co., 142 Mich 265. See, also, Jones v. Village of Portland, 88 Mich 598 (16 LRA 437), in which the doctor was employed by plaintiff's husband to examine her for the purpose of prescribing for her and preparing as witness in the suit.

Plaintiff assigns error on the trial judge's making reference, during trial and in his instructions to the jury, to her hypersensitivity, it having been an affirmative defense that the reaction of her skin to the permanent wave solution was due to such hypersensitivity. Plaintiff says this was erroneous because defendant offered no medical proof of plaintiff having such malady. She had testified herself, however, that she had suffered from hay fever since infancy. There also was testimony that defendant's treatment of plaintiff was in accord with standard practice in the community. In Smith v. Artiste Permanent Wave Shoppe, 293 Mich 441, this Court said:

"If the treatment given was in accord with the degree of skill, care, knowledge, and attention possessed and employed by others in the same line of practice in Detroit and similar localities, then there was no actionable negligence, even though plaintiff suffered serious consequences, for, in such case, it could be attributed to hypersensitiveness of plaintiff even to proper treatment."

In that case no testimony was noted of the previous existence of such condition, as contrasted with plaintiff's own testimony here. No error occurred in this connection.

Plaintiff's counsel started propounding a hypothetical question to a doctor on the witness stand. Counsel for defense objected on the ground that it contained a stated fact not yet in evidence. Colloquy between court and counsel ensued. The court said:

"I think he can propose a hypothesis that may not be in evidence but may be in evidence later."

It does not appear that the court ever sustained defendant's objection to the question. No basis, therefore, appears for plaintiff's urging error in this connection.

Both parties moved for directed verdict, without reservations. The court did not grant the motions but permitted the case to go to the jury. This, plaintiff says, constituted error. At time of trial, March 21, 1963, GCR 1963, 515.1 was in effect. It provided:

"Motion for Directed Verdict. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for directed verdict shall state specific grounds therefor."

No error occurred in this connection.

Plaintiff husband complains of error in dismissal of his action, assuming that it was ordered on the grounds advanced in defendant's motion, namely, defendant's immunity from service of process. This we need not consider. His action was derivative and dependent on the right of the plaintiff wife to prevail in her suit. Her action having fallen, his fell with it. Bias v. Ausbury, 369 Mich 378.

Affirmed. Costs to defendant.

KAVANAGH, C.J., and KELLY, BLACK, SOURIS, SMITH, O'HARA, and ADAMS, JJ., concurred.