Opinion
June 28, 1940.
1. NEGLIGENCE: Two Grounds of Negligence Submitted. In an action for injuries to plaintiff caused by a collision when defendant's tractor and trailer coming from the opposite direction were turned across the lane plaintiff was travelling in his automobile, where recovery was sought on two acts of primary negligence, one in not stopping and the other in turning into the lane plaintiff was traveling, the two charges of negligence were not conflicting nor misleading.
In such action where defendant complained there was error in submitting negligence on the failure to stop for lack of evidence, it was not prejudicial error because recovery was not based alone upon the failure to stop but also on the other charge of negligence which was amply supported by the evidence.
Requiring the jury to find for plaintiff on two grounds of negligence, when only one of the two is necessary, is not error.
2. TRIALS: Hypothetical Question: Expert Evidence: History of the Case. In an action for injuries to plaintiff where a physician, a specialist on nervous and mental diseases, testified in answer to a hypothetical question which recounted the circumstances of the collision as well as the injuries received from it and a description of plaintiff's condition, the doctor answered that in his opinion plaintiff was suffering from a brain injury, defendant's objection to only one element of the question was properly overruled where none of the other elements constituting the question was objected to.
An expert witness may base a competent opinion upon matters within his personal knowledge or observation, or upon competent evidence, or upon both, though a physician may not base an opinion upon the previous history of the case as received from the patient.
Statements of the patient to the doctor about matters past, not present complaints, are within the hearsay rule, therefore are not a proper foundation for an opinion, but if the "history" is made up of facts which in themselves are competent evidence, and which are in evidence, any objection to the use of such history must fall.
Where the opinion is based partly on the facts in evidence and partly on the facts related by the patient to the doctor, which are not in evidence, the opinion is not competent.
But where the doctor's opinion was based on facts in evidence assembled in the hypothetical question, it was competent.
3. TRIALS: Expert Evidence. Where a doctor giving expert testimony as to plaintiff's injury stated that the first time he saw the plaintiff he gave a connected history as to the accident and his complaints, his expert opinion was not based on hearsay evidence, since the word "history" as used, means the plaintiff's "account" of his injury.
Such testimony of the physician was not speculative, conjectural or contradictory but was sustained by the record.
4. EXCESSIVE VERDICT. In an action for injuries to plaintiff's brain where the evidence showed that from the time of the injury to the time of the trial the injuries to the plaintiff's brain had not improved but continued to get worse and, under the expert evidence would not improve but might continue to get worse, a verdict for $10,000 was not excessive.
Appeal from Circuit Court of City of St. Louis. — Hon. Michael J. Scott, Judge.
AFFIRMED.
Wayne Ely for appellants; Leahy, Walther, Hecker Ely of counsel.
The court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of plaintiff. It was reversible error to permit Dr. Arthur H. Deppe to testify to opinions based upon the history of plaintiff's case as given to him by the plaintiff. Dr. Deppe testified that he did not examine plaintiff for the purpose of treating him, and did not treat him. He also testified that in order for him to arrive at a correct diagnosis or conclusion as to plaintiff's condition it was necessary for him to know the history of the patient, and that said history was part of the matter that it was necessary for him to take into consideration in reaching a conclusion. Notwithstanding this testimony, he was permitted to testify to his opinions and conclusions as to plaintiff's condition. This was error. Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 94; Magill v. Boatmen's Bank, 288 Mo. 489, 232 S.W. 448; Hutchinson v. Mo. Pac. Ry. Co., 288 S.W. 94; Murphy v. St. Joseph Ry., L.H. P. Co., 283 S.W. 994; Curry v. Federal Life Ins. Co., 287 S.W. 1053; Evans v. Mo. Pac Ry. Co., 342 Mo. 420, 116 S.W.2d 8; Berry v. K.C. Pub. Serv. Co., 121 S.W.2d 825; Corbett v. Terminal Railroad Assn., 336 Mo. 972, 82 S.W.2d 97. The testimony of Dr. Deppe that the inequality of plaintiff's pupils might or could be congenital and that plaintiff was suffering from a slight Romberg only on February 4, 1937, and that the Romberg was not present either on May 13 or October 1, 1937, destroyed his opinion testimony that plaintiff was suffering from a brain injury, in view of the fact that the doctor testified that the evidence upon which he based that opinion was that plaintiff was suffering from "the unequal pupils and the positive Romberg." Adelsberger v. Sheehy, 59 S.W.2d 647; Seitz v. Hudson, 106 S.W.2d 524; Massey-Harris Co. v. Rich, 122 S.W.2d 866; Berry v. K.C. Pub. Serv. Co., 108 S.W.2d 107; Rothl v. Ralph, 84 S.W.2d 414; Cox v. M.-K.-T. Ry. Co., 76 S.W.2d 416.
Mark D. Eagleton and Roberts P. Elam for respondents; Hall Dame of counsel.
(1) There was no error in the admission of the testimony of Dr. Deppe, because: (a) His opinions were not founded upon hearsay facts related to him by plaintiff in giving a history of plaintiff's accident and injury. On the contrary, they were founded upon facts relating to the accident and injury as propounded to him in a hypothetical question which hypothesized those facts as such facts appeared in evidence at the trial, or upon facts within his personal knowledge, or upon a combination of hypothetical facts and facts within his personal knowledge. His opinions were, therefore, founded upon proper bases. De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 187; Perryman v. Mo. Pac. Ry. Co., 326 Mo. 176, 31 S.W.2d 5; Meily v. St. L.-S.F. Ry. Co., 215 Mo. 567, 114 S.W. 1021; Kelley v. Kansas City B. L. Assn., 229 Mo. App. 686, 81 S.W.2d 446; Porter v. Equitable Life Assur. Soc., 71 S.W.2d 774; Patterson v. Springfield Traction Co., 178 Mo. App. 250, 163 S.W. 958. (b) Dr. Deppe's testimony relative to the factual statements made by plaintiff in giving him a "history" of the case was competent evidence of verbal acts constituting external manifestations of the condition of plaintiff's mind and memory, and a proper basis for Dr. Deppe's opinion as to the condition of plaintiff's mind and memory, although not competent as to the truth of the facts stated by plaintiff, and not competent as a basis for an opinion of Dr. Deppe founded upon the truth or falsity of such facts. The record establishes that Dr. Deppe, in forming his opinions, used and considered the statements made by plaintiff only as verbal acts which gave external manifestation of the condition of plaintiff's mind and memory, irrespective of the truth or falsity of the facts related by plaintiff, and his opinions were, therefore, proper and competent. Platt v. Huegel, 326 Mo. 776, 32 S.W.2d 607; Lefever v. Stephenson, 193 S.W. 844; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 51; Crowson v. Crowson, 172 Mo. 691, 72 S.W. 1068; Thompson v. Ish, 99 Mo. 160, 12 S.W. 512; Rule v. Maupin, 84 Mo. 590; Pratte v. Coffman, 33 Mo. 76; Toon v. Evans Coffee Co., 103 S.W.2d 538; Browning v. Browning, 226 Mo. App. 322, 41 S.W.2d 868; 22 C.J., p. 278, sec. 284. (2) The instruction was not based upon the humanitarian doctrine, but upon primary negligence in failing to stop the truck and in turning or swerving the truck so as to cause the collision. The failure of the instruction to require any findings of fact essential to predicate liability under the humanitarian doctrine is, therefore, immaterial. State ex rel. Grisham v. Allen, 124 S.W.2d 1083; Brown v. Wheelock, 83 S.W.2d 913; Millhouser v. K.C. Pub. Serv. Co., 331 Mo. 933, 55 S.W.2d 675; Silliman v. Munger Laundry Co., 329 Mo. 235, 44 S.W.2d 163; Schulz v. Smericina, 318 Mo. 486, 1 S.W.2d 120. (a) This instruction submitted to the jury, as a predicate of defendants' liability, two charges or specifications of negligence, in the conjunctive, namely, negligent turning or swerving of the truck so as to cause the collision, and negligent failure to stop the truck. Therefore, even if the charge of negligent failure to stop the truck was without support in the evidence and was imperfectly submitted because essential facts were not required to be found, the jury was required, in order to find for plaintiff, to find that defendants negligently turned or swerved the truck so as to cause the collision — a sufficient predicate of liability which defendants concede to have been properly submitted — so that the instruction could not have been prejudicial to defendants, and did no more than to place an undue burden on plaintiff. Tash v. St. L.-S.F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 698; Berry v. B. O. Ry. Co., 43 S.W.2d 785; McKenzie v. Randolph, 257 S.W. 128; Wolfe v. Payne, 294 Mo. 170, 241 S.W. 919; McIntyre v. St. L. S.F. Ry. Co., 286 Co. 234, 227 S.W. 1052; Rigg v. C., B. Q. Ry. Co., 212 S.W. 879; State ex rel. Kibble v. First Natl. Bank, 22 S.W.2d 193; Webster v. International Shoe Co., 18 S.W.2d 133; Agee v. Herring, 221 Mo. App. 1022, 298 S.W. 253; Sec. 1062, R.S. 1929. (3) The contention of defendants that, absent the testimony of Dr. Deppe, which defendants contend was erroneously admitted, the verdict was excessive, does not properly present to this court for determination, and does not require this court to pass upon, any issue of excessiveness of the verdict. (a) In any event, the verdict is not in the least excessive, when the evidence relating to the nature, character and extent of plaintiff's injuries and damage is considered in the light most favorable to him, as it must be. Gieseking v. Litchfield Madison Ry. Co., 127 S.W.2d 8; Whittington v. Westport Hotel Co., 326 Mo. 1117, 33 S.W.2d 969; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1049; Keyes v. Chicago, B. Q. Ry. Co., 326 Mo. 236, 31 S.W.2d 66; Hoff v. Wabash Ry. Co., 254 S.W. 878; Boyer v. Mo. Pac. Ry. Co., 293 S.W. 386; Magill v. Boatmen's Bank, 250 S.W. 43; Irwin v. St. L.-S.F. Ry. Co., 325 Mo. 1019, 30 S.W.2d 59.
This is a damage suit for personal injuries caused by a collision between plaintiff's automobile and defendant's vehicle consisting of a tractor and trailer. Plaintiff was driving south on U.S. Highway 61. A light snow was falling. Near Bonne Terre the highway comes from the south curving down a hill. Plaintiff saw defendant's vehicle some 300 feet away, approaching him. Defendant's driver saw plaintiff when he was about 500 feet away. Each continued on in the proper lane. When they were about 25 feet apart the tractor abruptly turned onto plaintiff's lane, struck the front of plaintiff's automobile, continued to turn until it faced south and stopped with the trailer across the pavement. In his deposition, filed in plaintiff's case, defendant's driver explained the trailer was skidding. As he was coming down the hill he said he was "tapping" his brakes. At a cross-road the pavement was slick and the snow made it more so. When the rear wheels were on this intersection he put on the brakes which caused the trailer to skid and whip from side to side. He saw the plaintiff's automobile coming up the hill. He cut over in front of it causing the collision. The driver, on examination, denied putting on the brakes at all. Plaintiff testified that he did not see the trailer skidding at any time. The jury found for plaintiff for $10,000 and defendant has appealed.
This action is based on primary negligence. It was submitted to the jury on primary negligence. The instruction contained two elements of such negligence which were stated in the conjunctive. Recovery was bottomed on both elements, not on one or the other. It charged negligence in not stopping and in turning (onto the southbound lane of the highway) so as to cause the collision. Both charges of negligence were pleaded. Appellant does not question the submission of the charge on turning across the highway. Nor does it contend, nor could it properly do so, that the two charges were conflicting, confusing or misleading. It does complain about submitting the charge on failure to stop on the ground there was no evidence to support it. Assuming the truth of appellant's contention still it was not prejudicial error to submit such ground of negligence because recovery was not based upon it alone but in conjunction with the other ground which was amply supported by the evidence. "Requiring the jury to find for the plaintiff on two grounds of negligence, when only one of the two is necessary, is not error. It is merely requiring the jury to find negligence as to an unnecessary matter." [Berry v. Baltimore Ohio Ry. Co. (Mo.), 43 S.W.2d 782; Tash v. St. Louis-S.F. Ry. Co., 335 Mo. 1148, 86 S.W.2d 690.]
It is true that it would be error to mix primary and humanitarian negligence in the same instruction, Mayfield v. K.C. Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, but that was not done in this case.
The principal injury claimed as a result of the collision was one to the brain. A doctor who is a specialist in nervous and mental diseases examined respondent on three occasions for the purpose of testifying at the trial. He testified that his examination showed nervousness, dilation and inequality of the pupils of the eyes and a positive Romberg which later disappeared. He found that respondent was growing worse mentally in his ability to associate and retain ideas. The usual inclusive hypothetical question based on evidence already in the case was put to the doctor. This included the facts that respondent had never before received any injury to his head nor had suffered from headaches and nervousness prior to the accident. Then the question recounted the circumstances of the collision as well as the injuries received from it and a description of respondent's then condition and ailments. From the facts stated in the question the doctor answered it was his opinion respondent was suffering from a brain injury. Appellant objected to only one element of the question and was properly overruled. None of the other elements constituting the question were even questioned. However, in the preliminary interrogation the doctor answered that for a correct diagnosis it is necessary to have the history of the patient — a "short history of his past life as to illnesses and accidents." He did not repeat the history he received nor is it argued or inferred that such history was in any respect other than that included in the hypothetical question. Appellant argues that it is improper to permit in evidence an opinion based on the history of a patient's case, so to allow the doctor's answer to stand is reversible error.
It has long been settled an expert witness may base a competent opinion upon matters within his personal knowledge or observation, or upon competent evidence in the case, or upon both. Likewise it has been consistently held a physician may not base an opinion on the previous history of a case as received from the patient. [Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89; Magill v. Boatmen's Bank, 288 Mo. 489, 232 S.W. 448.] The word history as it is used covers the statements of a patient to the doctor about matters in the past not present complaints. Such a history is within the hearsay rule and therefore is not a proper foundation for an opinion which must be based on competent evidence. If, however, the so-called "history" is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such "history" must fall. On the other hand, where the opinion is based partly on the facts in evidence and partly on facts related by the patient to the doctor which are not in evidence, then of course the opinion is not competent. [Murphy v. St. Joseph Ry., etc., Co., 221 Mo. App. 670, 283 S.W. 994; Hutchinson v. Missouri Pac. Ry. Co. (Mo. App.), 288 S.W. 91.] In the instant case the doctor's opinion was based on facts in evidence assembled in the hypothetical question and was competent.
Further criticism of the doctor's testimony arises from the doctor's description of a conversation with respondent: "Well, the first time I saw Mr. Oesterle he gave a well-connected, directed history as to the accident and his complaints, and he associated his ideas normally, and his memory seemed to be intact; and the next time I saw him on May 13, 1937, he was silly, . . ." Substitute the word "account" for the word "history" and the basis of the appellant's criticism disappears. Here the doctor was properly testifying to his observation of respondent's condition as conveyed to him through respondent's speech. Further charges that the doctor's testimony was speculative, conjectural and contradictory are not sustained by the record.
The evidence shows that respondent has an injury to his brain which is permanent. His condition from the time of the injury up to the trial had gotten worse. It will not improve but might continue to worsen. Under such circumstances we do not believe the verdict was excessive.
The other contentions advanced by appellant have been considered and found to be without substance.
The judgment is affirmed. All concur.