Potts v. Howser

161 S.E.2d 737 (1968)

274 N.C. 49

Dr. S. J. POTTS, Plaintiff, v. James E. HOWSER, t/a Howser Boat Company, Defendant, and Jack R. Harris, Additional Defendant.

No. 439.

Supreme Court of North Carolina.

June 14, 1968.

*741 McElwee & Hall by Jerone C. Herring and John E. Hall, North Wilkesboro, for plaintiff appellant.

Smathers & Hufstader by James C. Smathers, Hickory, Larry W. Pitts, Newton, for defendant appellee.

HUSKINS, Justice.

Plaintiff preserves four assignments, to wit: (1) the court erred in failing to instruct the jury concerning plaintiff's right to recover damages for aggravation of a pre-existing physical condition; (2) the court erred in admitting hearsay evidence of a medical report by a doctor not present in court; (3) the court erred in admitting prejudicial evidence which was irrelevant and immaterial, to wit: (a) evidence of plaintiff's bad character, (b) evidence relating to negligence, (c) evidence of a subsequent accident, and (d) remote medical evidence; and (4) the court erred in failing to enter judgment in favor of plaintiff for at least nominal damages and court costs. These assignments will be discussed in that order. All other assignments are deemed abandoned under Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810.

"The general rule is that where the result of the accident is to bring into activity a dormant or incipient disease, or one to which the injured person is predisposed, the defendant is liable for the entire damages which ensue, for it cannot be said that the development of the disease as a result of the injury was not the consequence which might naturally or ordinarily follow as a result of the injury, and therefore, the negligent person may be held liable therefor." 22 Am.Jur.2d, Damages § 123. In Lockwood v. McCaskill, 262 N.C. 663, 670, 138 S.E.2d 541, 546, it was held that if defendant's misconduct "amounted to a breach of duty to a person of ordinary susceptibility, he is liable for all damages suffered by plaintiff notwithstanding the fact that these damages were unusually extensive because of peculiar susceptibility."

All the evidence tends to show that Dr. Potts was suffering from a pre-existing condition (variously described as fibrositis, arthritis, tenosynovitis and rheumatism), which was not activated from a dormant state by the accident. Rather, there is evidence from which the jury could find that plaintiff's diseased condition was active prior to the accident, and its severity was increased and aggravated as a result of defendant's negligence. This calls for application of legal principles aptly stated in 25 C.J.S. Damages § 21, p. 661, as follows:

"On the other hand, where the wrongful act does not cause a diseased condition but only aggravates and increases the severity of a condition existing at the time of the injury, the injured person may recover only for such increased or augmented sufferings as are the natural and proximate result of the wrongful act, or, as otherwise stated, where a preexisting disease is aggravated by the wrongful act of another person, the victim's recovery in damages is limited to the additional injury caused by the aggravation over and above the consequences, *742 which the pre-existing disease, running its normal course, would itself have caused if there had been no aggravation by the wrongful injury."

An injured person is entitled to recover all damages proximately caused by the defendant's negligence. Even so, when his injuries are aggravated or activated by a pre-existing physical or mental condition, defendant is liable only to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's condition. "The defendant is not liable for damages * * * attributable solely to the original condition." 22 Am.Jur.2d, Damages § 124. Plaintiff is confined to those damages due to its enhancement or aggravation. Louisville Taxi Cab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731; Sterrett v. East Texas Motor Freight Lines, 150 Tex. 12, 236 S.W.2d 776. Compare Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265.

It was held in Mourison v. Hansen, 128 Conn. 62, 20 A.2d 84, 136 A.L.R. 413, that one injured by the negligence of another is entitled to full compensation for all damage proximately resulting from the negligence, "even though [the] injuries are more serious than they would otherwise have been because of pre-existing physical or nervous conditions." Plaintiff "was entitled to damages to the extent that the jury found her condition was so aggravated by the defendant's wrongful act."

In the case before us, the court twice made reference in the charge to plaintiff's pre-existing condition, each time in the form of a contention as follows:

"Now, the defendant argues and contends otherwise. He argues and contends that this plaintiff had certain conditions, pre-existing conditions, and that he had not suffered any substantial injury, if any, to his person because of this collision, that he may have been thrown into the water, and that if there is any damage, it would be damage to his preexisting condition, and that he did not suffer any substantial injury or damage because of the negligence on the part of the defendant." Again, "Now, the defendant argues and contends otherwise. He argues and contends that the plaintiff was not hurt on this occasion, that mostly he was thrown out into the water and that if he was suffering any injuries, that it was a reoccurrence or flare-up of the pre-existing condition and that that was not a substantial injury or damage to this plaintiff."

In each instance the court was stating contentions of the defendant following a statement of plaintiff's contentions. No instruction of law was given with reference to these contentions, and the inference is left that if the jury should find that that plaintiff's pain and suffering, loss of earnings and medical expenses were attributable to a pre-existing disease or infirmity plaintiff could not recover. The legal significance of negligent acts on the part of the defendant which aggravated or accelerated a pre-existing condition was not explained. This was a substantive feature of the controversy and it was incumbent upon the court to instruct the jury with reference to it even in the absence of a specific request. G.S. § 1-180. It was so held in Harris v. Atlantic Greyhound Corp., 243 N.C. 346, 90 S.E.2d 710, 58 A.L.R.2d 939. See also Saunders v. Warren, 267 N.C. 735, 149 S.E.2d 19; Westmoreland v. Gregory, 255 N.C. 172, 120 S.E.2d 523; Byrnes v. Ryck, 254 N.C. 496, 119 S.E.2d 391; Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295; Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484. The court's general instruction on the measure of damages was insufficient to satisfy this requirement. Plaintiff's first assignment of error must therefore be sustained.

Plaintiff's second assignment of error is based on alleged violations of the Hearsay Rule. The following cross examination of *743 plaintiff concerning a medical report by Dr. Floyd was permitted over objection:

"Q And I'll ask you if it didn't contain this: Under paragraph One-A, entitled: `Diagnosis and Concurrent Conditions'I'll ask you if it didn't contain this statement: `Multiple contusions, left arm, left shoulder and upper back and neck from auto accident'? "A That's right. "Q And I'll ask you if it didn't contain this statement, in answer to paragraph six, subsection B, `If Yes, estimated date of termination and cost of further treatment'? The date was given as `15 November 1966'? "A That's right."

Dr. Floyd was not in court and did not testify. The foregoing represents plaintiff's Exceptions Nos. 18, 19 and 20.

Dr. Alex Moffett, a witness for plaintiff, was cross examined over plaintiff's objection in the following fashion:

"Q Did you get a radiologist's report on that? "A Yes, sir. "Q Do you have it with you? "A Yes. "Q Have you reviewed it yesterday or this morning? "A Yes, I have. "Q Did you look at the x-rays? "A Yes, I did. "Q Do you have an opinion satisfactory to yourself as to what they showed? Objection. Overruled. "A They did not show any evidence or pattern of joint change except for one change that the radiologist noted that he apparently did not consider of any importance."

This is plaintiff's Exception No. 31.

Plaintiff attempted to offer in his own behalf a letter written by Dr. Jacobs of the Miller Clinic in Charlotte to the plaintiff purporting to show that Dr. Jacobs advised plaintiff he could recuperate better in New Mexico, Arizona or Mexico because of the sunshine. Defendant's objection was sustained, and this constitutes plaintiff's Exception No. 24.

Plaintiff's exceptions to the admission and exclusion of the foregoing testimony are grouped under one assignment of error, and properly so, since they all relate to a single question of law; namely, whether such evidence violated the Hearsay Rule and was therefore incompetent. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785.

"Evidence, oral or written, is called `hearsay' when its probative force depends in whole or in part upon the competency and credibility of some person other than the witness by whom it is sought to produce it." King v. Bynum, 137 N.C. 491, 495, 49 S.E. 955, 956; quoted with approval in Chandler v. Jones, 173 N.C. 427, 92 S.E. 145. "Expressed differently, whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay." Stansbury, N. C. Evidence, Hearsay, § 138.

Defendant's cross examination of plaintiff concerning Dr. Floyd's medical report was for the purpose of showing that plaintiff had been injured and disabled in the Wilmington accident and could not claim damages against defendant for that period of disability. Defendant was not merely seeking to establish the fact that Dr. Floyd rendered a medical report. Rather, he was seeking to establish the truth of what the report said and was placing its contents before the jury without introducing it. He was doing indirectly what he could not do directly. The medical report itself was clearly hearsay. Dr. Floyd *744 was not in court and subject to cross examination. It therefore follows that plaintiff's Exceptions Nos. 18, 19 and 20 should have been sustained.

The cross examination of Dr. Moffett concerning the report of the radiologist is competent. It does not appear that Dr. Moffett was merely reading the report before the jury. Rather, he stated that he had reviewed the report himself and had an opinion satisfactory to himself as to what it showed. Nothing affecting his competency to testify about it appears in the record. Exception No. 31 is overruled.

Plaintiff is in no position to insist on his Exception No. 24 for the simple reason that error by the court in defendant's favor does not entitle plaintiff to similar benefits.

Over objection, defendant was permitted to question plaintiff as follows:

"Q As a matter of fact, your fifth wife was employed in your office at the time this accident occurred, and you complained to her about it [tense wrists], didn't you? "A I don't recall. My wife had no routine or anything as to massaging my neck and the upper part of my back and my wrist prior to this accident. She did it every now and then; I think everyone does. It was because I bent over in such a position that my back and neck hurt and that's the reason she massaged it. [Plaintiff's Exception No. 6] "Q How long did you stay in Mexico? "A Ten days or two weeks. "Q And while you were there, you filed for a Mexican divorce from your fifth wife? "A I did not. "Q Your wife was served with papers from a Mexican court, wasn't she? [No answer] "Q And you got a Mexican divorce, didn't you? [No answer] "Q You got a Mexican divorce, did you, Doctor, from this Miss Mary Helen Marshall? "A Not at the time. It had nothing to do with that trip. It was years later that I got that divorce. I got a Mexican divorce, and it was not at Acapulco. It was not during that time. It was not. [Plaintiff's Exceptions Nos. 13, 14 and 15] "Q Do you drink at all? "A I never have drank enough to affect my work. I've never drank to affect my work." [Plaintiff's Exception No. 21A]

After plaintiff testified he filed income tax returns with reference to his earnings, he was asked:

"Q Then I'll ask you if, after the filing of the income tax return, or after you had taken credit for bad debts on the books, when somebody did happen to come by and pay you, you stuck the money in your pocket, didn't you? "A Not to my knowledge." [Plaintiff's Exception No. 16]

Mary Helen Marshall, testifying on direct examination as a defense witness, was asked over plaintiff's objection:

"Q What about his bad accounts? "A Well, he usually turned them over to a credit bureau or whatever you want to call it, or collection agency. "Q What about peopledid you keep a list of what he called his bad accounts? "A Well, there was a list there in the office. He usually had an accountant to fill out the things and when the taxes wereyearly taxes were fixed, I just *745 signed them and I didn't know what was what." [Plaintiff's Exceptions Nos. 39 and 40]

Plaintiff contends the foregoing exceptions, which are grouped for discussion in the brief under his third assignment of error, were irrelevant and immaterial to the issue being tried, were intended as evidence of his bad character, and were very prejudicial.

The question and answer embraced in Exception No. 6 was harmless. Plaintiff was asked on cross examination if he had not complained about tenseness in his wrists to his fifth wife who was employed in his office prior to the accident in suit. The question identifies the wife to which the complaints were allegedly made. Obviously, a man who has had six wives could not be asked if he complained to his wife. The question would be too vague and indefinite.

Exceptions Nos. 13, 14 and 15 relate to plaintiff's trip to Mexico shortly after the accident and whether he got a Mexican divorce while there. It is entirely proper for defendant to show, if he can, that plaintiff was not so severely injured that he could not make a pleasure trip to Mexico shortly after the accident. Even so, notwithstanding the wide range permissible, "cross-examination for purposes of impeachment must stay within reason, and cannot be used to bring out purely prejudicial matters * * *." Stansbury, N. C. Evidence, Witnesses § 42. Cross examination may not be used to take unfair advantage nor to discredit a witness by questions "tending merely to prejudice him in the eyes of the jury without rational basis as affecting his credibility." Foxman v. Hanes, 218 N.C. 722, 725, 12 S.E.2d 258, 260. We think the questions concerning the Mexican divorce come within this category as do those questions concerning plaintiff's income tax returns and method of handling his delinquent accounts. The inquiry about plaintiff's drinking habits was permissible as bearing upon the cause of his alleged loss of earnings.

Exceptions Nos. 39 and 40 are sustained for the reason that plaintiff's handling of his bad accounts, even if a proper subject for cross examination of plaintiff, is a collateral matter. His answer was conclusive and cannot be contradicted by other testimony. State v. Brown, 266 N.C. 55, 145 S.E.2d 297, and cases there cited.

Defendant was permitted to elicit from plaintiff on cross examination an admission that plaintiff rented a fishing boat for eleven days immediately following the accident. Plaintiff's Exceptions Nos. 9, 10 and 11 assigned this as error for the reason that property damage was not included in plaintiff's suit. These exceptions are without merit and are overruled. The stated purpose of the evidence was to show lack of injury and to show that plaintiff was able to carry on his usual fishing pursuits.

Plaintiff's Exceptions Nos. 36 and 37 are addressed to the action of the court in permitting defendant to elicit from his witness Cromer Spencer testimony to the effect that defendant's boat was traveling at a speed of 3, 4, 5 or 10 miles per hour. "Couldn't have been over ten." Again, this evidence was not offered to show lack of negligence but as bearing upon the lack of force upon impact and to minimize the injuries likely to ensue therefrom. Its admission was harmless and plaintiff's exceptions are overruled.

Plaintiff excepts to the admission of evidence concerning a subsequent accident in which plaintiff was involved, contending it was improper to admit evidence of a rearend auto collision on the highway near Wilmington because it was in no way similar to the boating accident and because there was no competent evidence that the injuries plaintiff received as a result of the collision related in any way to the injuries received in the case at bar. This is plaintiff's Exception No. 17.

*746 In view of plaintiff's contention that he has sustained permanent injuries from the boating accident, defendant may show by competent evidence, if he can, that plaintiff was involved in a subsequent accident resulting in injury and disability. Defendant may further show the nature and extent of such injury and disability by the testimony or deposition of Dr. Floyd or by any other competent evidence. Plaintiff's Exception No. 17 is well taken on the present record because no competent medical evidence was offered to show what injuries plaintiff sustained in the Wilmington accident or what disabilities he suffered by reason thereof. Defendant will have an opportunity to mend his licks at the next trial.

Plaintiff's Exceptions Nos. 1, 2, 3, 4, 7, 8, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35 and 38 relate to medical evidence, some allegedly too remote, some too conjectural, and some rendered by a nonexpert. These exceptions are all overruled. Evidence of pre-existing injuries, diseases or infirmities is competent in diminution of damages allegedly attributable to the injury in suit if such prior conditions bear a causal relation to the disabling injuries for which damages are sought. Plaintiff's medical evidence, and his own testimony as well, tends to show a history of pain due to arthritis, rheumatism, tenosynovitis and fibrositis. His complaints since the boat accident relate to pain in his fingers, wrists, shoulder, neck and backconditions which could result from arthritis, rheumatism, tenosynovitis or fibrositis. Furthermore, the testimony of plaintiff's former wife concerning his physical condition and complaints prior to the accident was competent. "A nonexpert witness may testify from his knowledge and observation of the physical condition of a person as to such person's ability to engage in work or follow a gainful occupation. Such witness may also testify as to a person's health, including an opinion about his present state of health and ability to work." 3 Strong's N.C. Index 2d, Evidence § 44. See also Gasque v. City of Asheville, 207 N.C. 821, 178 S.E. 848.

Defendant was entitled to cross examine plaintiff concerning a disability benefit of $21 monthly received by plaintiff from the U. S. Air Force on account of a service-connected disability to ascertain the nature of such disability and whether or not it contributed to his alleged disabilities for which damages are sought in this case.

We consider next the effect of a judgment by default and inquiry. "A judgment by default and inquiry is an interlocutory judgment which transfers the cause by operation of law to the Superior Court for further hearing in term. It has been held that a judgment by default and inquiry determines the right of plaintiff to recover at least nominal damages and costs and precludes defendant from offering evidence on the inquiry to show that plaintiff has no right of action." 5 Strong's N.C.Index 2d, Judgments § 15. See also Rich v. Norfolk Southern Ry. Co., 244 N.C. 175, 92 S.E.2d 768; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179.

The most defendant can accomplish by his evidence on the inquiry is to reduce the recovery to nominal damages. Garrard v. Dollar, 49 N.C. 175. This rule was recognized in this case on a former appeal [Potts v. Howser, 267 N.C. 484, 494, 148 S.E.2d 836, 844] where Parker, C. J., speaking for the Court, said:

"It is true that defendant's answer has been stricken, and that plaintiff's cause of action and right to recover at least nominal damages have been established. However, defendant is entitled to a trial on inquiry before a jury on the issue of damages. G.S. § 1-212; Wilson v. Chandler, 238 N.C. 401, 78 S.E.2d 155. In the trial of the question of damages, the defaulting defendant has the right to be heard and participate. He may, if he can, reduce the amount of damages to nominal damages. 30A Am.Jur., Judgments, § 219."

*747 "Nominal damages, consisting of some trifling amount, are those recoverable where some legal right has been invaded but no actual loss or substantial injury has been sustained. Nominal damages are awarded in recognition of the right and of the technical injury resulting from its violation. They have been described as `a peg on which to hang the costs.' Hutton & Bourbonnais v. Cook, 173 N.C. 496, 92 S.E. 355, 356; 15 Am.Jur. 390. `What is meant by nominal damages is a small trivial sum awarded in recognition of a technical injury which has caused no substantial damage.'" Hairston v. Greyhound Corp., 220 N.C. 642, 644, 18 S.E.2d 166, 168.

Plaintiff's right to recover at least nominal damages and costs was a substantive right and it was incumbent upon the court to instruct the jury with reference to it even in the absence of a special request. The jury's verdict was reached under a misapprehension of the law.

Plaintiff is entitled to a

New trial.