Devore v. Schaffer

Smith, J.-

— Plaintiff, an Adams County farmer, desiring to buy some- used tubing belonging to the county, went to the county engineer, and then to the county yard in Corning where the county kept bridge steel, lumber and other highway material: “I came to see the engineer to buy some- of the old tubes along the road. They had been doing some grading and graveling near my farm and had taken out some tubing. I was interested in buying * *

After .a brief call on the engineer at the shop he went down “to see the boys who were running the truck” in the yard. He was interested also in some bridge iron which the engineer told him was in the lower yard. He there found defendant and three other county employees at or near a county truck and trailer of which defendant was the driver. The truck was 24 feet and the trailer 18 feet long. There was some conversation and they all walked over to look at the old bridge iron.

They returned to the truck which was near a large Diesel oil barrel (described as a 15,000-gallon tank). The truck was in a sort of driveway or roadway headed northeast, an estimated distance of 60 feet southwest of the tank. A small pump house was immediately to the east of and close to the tank. The, driveway turns to the north from a northeasterly course at and around this pump house.

There was some conversation .as the county men got aboard the truck and trailer, defendant in the driver’s seat, one man alongside him in the truck and the other two behind on the flat top of the trailer.

Plaintiff’s description of what happened is not too clear: * * and they started off and I started up .and the trailer just reached and got me. * * * I walked just kind of right up, just outside the truck.” He says the truck started northeast and then turned straight north: “Well, it just caught my leg and foot in the dual wheel and wrapped me around the wheel, and knocked me down, and run over this leg and broke it and tore this one up. I was first caught by the trailer in the right heel. I was thrown just straight flat down. I lit on my head and nose, and cut my lip.”

It is shown in the evidence that when the truck turned to the left to go north around the building the trailer cut nearer the building four or five feet. “When we came around there with the trailer on, we swing over enough to the east [right] # # * and south, not to catch the trailer onto the building. * * * I knew * * * that the trailer would cut over north from the truck when I started to make the turn.”

Plaintiff explains that when the truck turned left the trailer “didn’t follow” it: “Q. It didn’t go over to the right or follow behind the truck 1 A. No sir.”

It appears the conversation continued a short distance as plaintiff walked alongside the truck after it started and before it started to turn. Defendant testified: “I traveled about thirty feet while Devore was still talking to me. He was along the side there, talking to me, and talked to one of the other boys on the truck that I know of.”

The court submitted but two specifications of negligence: (1) In suddenly starting the truck and turning it sharply to the left, and (2) in failing to keep a proper lookout.

The jury brought in a verdict for plaintiff and defendant appeals from the resulting judgment.

I. Defendant first complains of rulings permitting an Omaha doctor to testify as to statements made to him by plaintiff concerning plaintiff’s injuries. The objection was that “the doctor did not treat plaintiff as a patient but merely examined him for the purpose of being able to testify as an expert witness.”

It is urged the doctor repeated statements made to him by plaintiff concerning how the accident happened. There is some ground in the record to support that complaint. “I asked him about this accident and he described it, stating how he had been hurt, and how he had his foot fractured. He had numerous body bruises and contusions and some head injuries * * * in the face, nose and lip. He said he was unconscious for several hours.” There is more clinical history upon which the witness based his testimony as to the extent of plaintiff’s injuries.

The trial judge at the conclusion of the doctor’s testimony advised the jury he had stricken “all statements made by the plaintiff [to the doctor] regarding the history of his case and his condition” and added: “You should not consider any statements made by the plaintiff to the doctor, or any opinion of the doctor except that which was the result of and based upon his physical examination of the plaintiff.” (Emphasis supplied.)

And in instruction 12, two days later, the jury w.as told in effect that while a physician called on to treat and who does treat a patient may testify to what the patient told him as a part of the facts upon which he bases his opinion as to the patient’s condition, the rule is otherwise when he is called to make an examination for the sole purpose of determining his condition “and not for the purpose of treating him. * * * And you will, in considering this case, give no consideration to any statements made by the plaintiff to the examining physician who did not treat him for his injuries.” But no caution was given at this point to disregard the expert’s opinion based on statements made to him by the patient.

The distinction urged by defendant and adopted by the instruction, between a medical expert witness who is called to treat and actually treats the patient and one called merely to testify seems well established. In Mitchell v. Montgomery Ward & Co., 226 Iowa 956, 959, 285 N.W. 187, 188, it is clearly explained that the rule permitting a doctor to testify as to the history of the case is an exception to the hearsay rule based on “a probability that the patient will not falsify in statements made to his physician at a time when he is expecting and hoping to receive from him medical aid and benefit. But no such presumption can be indulged, and such testimony is not admissible, according to the great weight of authority, when the patient, having become a' litigant, causes himself to be examined by a physician for the purpose of the latter giving evidence in a case about to be tried.” This case was followed in Pierce v. Heusinkveld, 234 Iowa 1348, 1358, 14 N.W.2d 275.

In 32 C. J. S., Evidence, section 536, at pages 259, 260, it is said that, although there is some authority to the contrary, a medical expert who has examined the patient for the purpose of becoming a witness “must base his testimony solely on the examination * * * and not on statements in the nature of self-serving declarations made by the patient * * * and acts * * *, which may have been either voluntary or involuntary, cannot form part of the basis of the opinion.” See 20 Am. Jur., Evidence, section 866, citing annotation 65 A. L. R. 1217, et seq., IIIb.

The witness here frankly admitted the examination he made of plaintiff was for the purpose of qualifying as an expert witness and not of treating him as a patient. He saw plaintiff but once and that was in Omaha. He was asked no hypothetical question based on his own examination alone.

II. Plaintiff tacitly concedes the soundness of this proposition contended for by defendant as did also the trial court. It is urged however that any error in the admission of the doctor’s testimony was cured by the admonition to the jury, already quoted, and instruction 12, already referred to.

We have examined the doctor’s testimony to find whether he expressed any opinion based alone on his own physical examination of plaintiff and disregarding the history of the case recounted by plaintiff. He expressed none. The admonition (not repeated in the instructions) placed upon the jury the duty of making a distinction which the witness himself did not make and was not asked to make.

The error in admission of the testimony must have been prejudicial and it could not have been cured by merely striking the testimony of the statements and by admonishing the jury to ignore it and any opinions based on it.

Had the court stricken all opinion testimony of the witness we would then have to appraise the situation to determine whether the prejudice was thereby removed. But this the court did not do. Every opinion the doctor expressed was based in part at least on incompetent evidence and was therefore entitled to no consideration. Switzer v. Baker, 178 Iowa 1063, 1079, 160 N.W. 372.

The witness was asked as to his opinion of plaintiff’s “chances of recovery” based upon “the history of the case [emphasis supplied] and the diagnosis you made there and the X-ray pictures and so on that you took.” He replied: “This gentleman is in a stationary condition and he will never get any better. It is a long time since the accident and there w.as apparently a slow healing fracture in that the doctor kept the east on a long time. He has loss of the big connecting muscle on the front of the right thigh, with weakness, and ample evidence to corroborate what he says about his knee wobbling, and as I told him, it probably always will. There is no further treatment. Maybe one of these braces would help his left ankle but there is no treatment for it.”

Neither the form of any question asked the witness, nor the language of any answer, gives any clue by which the jury could determine what part of the doctor’s opinion was (in the language of the court’s admonition) “the result of and based upon his physical examination of the plaintiff.”

Nor could the court make such determination. Only the witness could know what his opinion would have been without reference to what plaintiff told him. We think there was prejudicial error and that it concerned more than the mere question of the amount of damages. The doctor went out of his way at one point to comment on plaintiff’s honesty in not making claims that “could easily be claimed by a conniving patient.” The doctor’s testimony was calculated throughout to create sympathy for plaintiff generally, entirely distinct from the question of amount of damages.

III. Defendant argues plaintiff was “a trespasser or, at the most, a mere licensee, on a personal errand of his own or for his own accommodation.” He invokes the rule that the only obligation owed by the owner or occupant of premises to a mere licensee or a trespasser “is not to intentionally, wilfully or wantonly injure him”, citing Printy v. Reimbold, 200 Iowa 541, 202 N.W. 122, 205 N.W. 211, 41 A. L. R. 1423, and 38 Am. Jur. 773.

Plaintiff, on the other hand, insists he was an invitee and entitled to the protection of the general law of negligence which “imposes the duty of exercising due care to prevent injury”, citing Mann v. Des Moines Ry. Co., 232 Iowa 1049, 7 N.W.2d 45, and other cases.

There was ample testimony to indicate the county yard was not used alone for storing county material. Plaintiff testified he had bought iron there from the county engineer before, and on another occasion had obtained plank. The engineer testified in effect that on the day plaintiff was injured he told plaintiff “If you will wait a few minutes I will go down with you and show you what we have.” The yard clerk and engineer both gave testimony as to the custom.of selling used material not needed by the county.

This is not an action against the county as the owner or occupant of the premises, nor does it involve any claim the injury was due to a defective condition of the premises. "We think the trial court correctly submitted the ease to the jury upon the common-law rule that requires the driver of a vehicle to exercise that degree of care for the safety of another which an ordinarily careful and prudent person would exercise under like circumstances. Defendant owed no greater or less degree of care to plaintiff by reason of the place where the injury occurred. Plaintiff was neither a trespasser nor a mere licensee. He was there on a legitimate errand. Whether as a licensee •or an invitee was immaterial. In other words the question of plaintiff’s relationship to Adams County as fhe proprietor of the premises does not fix the measure of duty of defendant to plaintiff. Connell v. Keokuk Electric Railway & Power Co., 131 Iowa 622, 629, 109 N.W. 177.

Defendant argues “the place where this .accident happened has a direct bearing upon the question of ‘lookout.’ ” No case is cited in support of the proposition. Plaintiff answers: “Lookout is not a statutory ground of negligence. It is not made so.” Lookout appears to be a word borrowed from maritime law where it was .applied to a member of the crew charged with the duty of keeping watch for possible danger. See 15 C. J. S., Collision, section 2, page 12; also 25 Words and Phrases, Lookout, page 601 et seq.

As used in connection with the operation of a motor vehicle it has no technical legal significance. Its meaning depends on the context. Here, as applied to defendant, it could only mean care to discover whether plaintiff was in a place of safety from possible injury by the contemplated movement of the truck and trailer. We find no error in the instruction given or in the refusal to give the requested instruction on the measure of care.

Defendant’s suggestion that “the cloak of governmental immunity should be placed on the defendant”, as an employee of the county, notwithstanding Rhoads v. Perdue (239 Iowa 1030, 33 N.W.2d 371) cannot be accepted.

IV. Nor do we think there was lack of sufficient evidence to go to the jury on the issues of defendant’s negligence and plaintiff’s freedom from contributory negligence. In Division III we have answered the contention that because of the location of the accident and of defendant’s employment with the state some different standard of care should be applied.

As to general negligence and contributory negligence, defendant was driving a vehicle with which he was familiar. He had driven that type “about a year and a half.” He knew that in making the turn to the left he had first to swing the truck to the right enough so that the trailer would clear the building around which the left turn was being made. He must have known plaintiff would be in a place of danger when the vehicle made the turn.

It is not so clear plaintiff realized his dangerous situation as to make the question of freedom from contributory negligence one of 'law. He was moving away from the truck with his back to the trailer. He testified he did not know the trailer would “cut across” as the truck turned left — “I didn’t know it would follow in that way.”

We think there was a jury question on both issues.

Y. Other assigned errors are not discussed as the case must be reversed because of the error pointed out in Divisions I and II hereof. They may not .arise on a retrial of the case or may depend on a record substantially different from the one presented here.

For the error pointed out the case must be reversed. — Reversed. ■

Bliss, Wennerstrum, Hats, Thompson, and Larson, JJ., concur. Mulroney, J., Garfield, C. J., and Oliver, J., dissent.