Opinion
No. 3734.
Decided May 4, 1948.
An exception to a decree as "against the law" presents no question of law not previously saved by exception. A decree will not be set aside "as against the weight of the evidence" unless the record discloses such a great preponderance of evidence as to clearly indicate improper action on the part of the trier of facts. The interpretation of testimony is for the Trial Court.
PETITION for compensation under R.L., c. 216. It was conceded that injuries which the plaintiff suffered on February 20, 1945 to the first phalanx of his left index finger, arose out of and in the course of his employment by the defendant. The plaintiff sought to recover compensation for loss of employment which he claimed was due to psychoneurosis resulting from these injuries. The Court (Goodnow, C.J.), after hearing, found that "the psychoneurosis, mixed type, which the plaintiff now claims resulted to him and arose out of the accident which occurred to him on February 20, 1945, did not arise out of or result to him . . . [from] this accident"; and dismissed the petition.
The plaintiff excepted to the decree upon the ground that it was "against the law, the evidence, the weight of the evidence and the law and the evidence." He excepted to the quoted findings, "because . . . against the evidence and the weight of the evidence." His bill presenting these exceptions was allowed and transferred by the Presiding Justice.
The salient facts disclosed by the evidence may be briefly summarized. The plaintiff, a carpenter by trade, had been in the employ of the defendant for nearly four years. During that period he had in each year suffered an injury to one of his hands, the most serious damage, prior to the last accident, having been to his right hand in May, 1943.
In the accident of February 20, 1945, his left forefinger was cut by a jig saw, fracturing the distal phalanx, causing loss of tissue and motion. He lost no time following this accident, but continued to work from fifty-two to fifty-five hours a week, until June 2, 1945, when he was hospitalized briefly for observation because of stomach complaints. After his release he continued to see his attending physician at intervals up to the time of the trial. He worked part time for two and one-half weeks in April, 1946, and then left the defendant's employ permanently. When last injured he was a working foreman in charge of three or four men. He was not restored to this position in 1946, because considered incapable of supervising an enlarged department of twenty men.
A specialist in psychiatry and neurology called as a witness by the plaintiff testified that he was suffering from "psychoneurosis, mixed type," the most important cause of which, in his opinion, was the 1945 accident. The witness first saw the plaintiff on February 1, 1947, and had seen him on two other occasions in the following month. He testified that the plaintiff displayed "definite nervous symptoms," including anxiety concerning his ability to make a living.
The plaintiff's attending physician, was called by the defendant. He had treated the plaintiff following each of his accidents, and had also treated him for his stomach complaints, and for nervousness. Without objection, he testified that he thought that the plaintiff had been nervous for quite a number of years, and that he did not think that he was any more nervous after the last accident than before.
From the plaintiff's testimony it appeared that he had lost twenty pounds in weight partly after the 1943 accident, and partly after that of 1945.
The findings and rulings of the Court state that "no claim is made and no evidence was introduced concerning any permanent partial disability in the use of the hand as distinct from his general nervous disability."
Chretien Craig (Mr. James A. Manning orally), for the plaintiff.
Warren, Wilson, Wiggin Sundeen (Mr. Sundeen orally), for the defendant.
The plaintiff's exceptions present the relatively narrow issue of whether the preponderance of evidence that psychoneurosis resulted from the accident was so great as to make it "appear clearly and definitely that the [Court] did not act properly in its consideration of the evidence" because it was "`misled, or failed to consider intelligently the evidence laid before'" it. Witsutskie v. Malouin, 88 N.H. 242, 246. So far as the exception to the decree rests upon the claim that it is "against the law," it presents no question of law, because none was previously saved. Bennett v. Larose, 82 N.H. 443.
As our decisions plainly indicate, findings or verdicts are not against the weight of the evidence merely because a preponderance of evidence might reasonably be thought to favor the moving party. Upon conflicting evidence, there may reasonably be a difference of opinion as to where the preponderance lies. While the plaintiff's testimony served to support the opinion advanced by the expert whom he called, as against that of the physician called by the defendant, a preponderance in favor of the plaintiff did not necessarily result, much less such a great preponderance as to clearly indicate improper action on the part of the trier of the facts.
The plaintiff suggests that the testimony of his attending physician concerning his history of nervousness was based upon conjecture rather than personal knowledge of his condition prior to the last accident, and served to mislead the Court. The witness' language was compatible with the expression of an opinion. It was unquestioned by objection or cross-examination, and uncontradicted by the plaintiff. To infer that it was founded neither upon the witness' observation of the plaintiff, nor upon the latter's statements to him is hardly required. Interpretation of the testimony was for the Trial Court.
Moreover, the findings were not necessarily based upon the defendant's evidence. The burden of proof was upon the plaintiff. If the testimony of the expert upon whom he relied was unconvincing, whether because his knowledge of the plaintiff's condition before the accident was limited to what he had been told, or for some other reason the Court was not obliged to accept his conclusions.
We find no clear or definite indication in the record that the Court acted improperly or unintelligently in considering the evidence, or was any way misled. Leavitt v. Bacon, 89 N.H. 383, 388.
Exceptions overruled.
All concurred.