Henry v. Postal Telegraph Co.

197 P. 258 | Or. | 1921

McBRIDE, J.

1, 2. It is settled in this state and by the great weight of authority in other jurisdictions that the permanency of an injury may be shown under a general allegation of damages without more explicit pleading: Sigel v. Portland, R. L. & P. Co., 67 Or. 285 (135 Pac. 866); 13 Cyc. 189, and cases there cited. Counsel for defendant virtually concede this to be the law, but contend that plaintiff is estopped by her pleading to take advantage of this general rule. The particular sentence in plaintiff’s complaint to which reference is made in the ingenious argument of counsel is this: After generally describing her injuries and stating that plaintiff’s “knee would be weak for a long time, and that the patella will be more liable to dislocation than before said injury,” the complaint avers that, “these conditions may be of a permanent character.” Counsel for' defendant contend in effect that plaintiff should be held to have negatived thereby probability or reasonable certainty. "While the allegation adds nothing which enlarges the scope of the proof that could legally have been adduced without it, it does not narrow or abridge it. There are few words having so many distinct meanings as “may.” It sometimes imports ability, competency, possibility, or probability: Home Ins. Co. v. Peoria etc. Co., 78 Ill. App. 137-140. Any of these attributes to this protean auxiliary verb may be true and taken at its full meaning without limiting the legal effect of an allegation of general damages. That which is reasonably certain to occur is surely possible or probable. The pleading, if anything, was to the defendant’s advantage, as it was thereby notified that plaintiff had in contemplation the introduction of testimony concerning the permanency of her injuries. To construe the pleading as contended for by counsel for defendant would be to strain a point so as to attribute to plaintiff’s counsel the improbable intent to do what was no doubt furthest from his mind when he drew the pleading, namely, to limit the scope of plaintiff’s recovery.

The case of Rugenstein v. Ottenheimer, 70 Or. 600 (140 Pac. 747), is cited by counsel as sustaining the contention of defendant here, but that case does not, in onr opinion, conflict with the ruling of the Circuit Court in the case at bar. There, the contention was not that the pleading was insufficient or that the proof of permanent injury was entirely lacking. In that case counsel for defendant asked this instruction :

“Before you are warranted in allowing the plaintiff any sum by way of compensation for any alleged permanent injuries, if you should come to the question of damages, you must be reasonably certain, from a preponderance of the evidence, that the plaintiff has sustained permanent injury and disability, and it is not enough that you may believe that a permanent injury is possible.”

This instruction the trial court refused, and gave nothing equivalent to it, thus leaving the jury free to find damages upon the theory that there might be a possibility of permanent injury. All that was said by Mr. Justice Burnett in that case was with reference to the refusal of the court to give the instruction requested.

The testimony of the physician who attended the plaintiff in the Rugenstein case as to the probability of permanent injury was no stronger than the testimony of Dr. Short in the present instance, and yet this court held that it was sufficient to go to the jury.

The instruction of the court in the present case, as to recovery for alleged permanent injury, contained everything that the court rejected in the Rugenstein case, and more. In fact, the principal instruction on that subject was given at the request of the defendant, and fully stated the law. What was afterwards said by the court only emphasized and made more clear the law as contained in defendant’s request.

3,4. Beferring to the motion for a new trial, it may be said that the refusal to grant a new trial is a matter in the sound discretion of the court, and will not be reviewed here, except for an abuse of that discretion.. The statement plaintiff’s counsel made in the course of the negotiations for a settlement of plaintiff’s claim, to the effect that, “we are not making a claim for serious, permanent injury, although our client is not yet free from pain or inconvenience,” was made pending an attempt to compromise the case, and was not binding either upon the plaintiff or her attorney in case no settlement was reached. The allegation in the complaint to the effect that some of plaintiff’s injuries might be peimanent was certainly some notice to defendant that in view of the necessity of a lawsuit plaintiff had changed her attitude in regard to asking for damages for permanent injuries; or it might even be that in the interval of time between the correspondence and the filing of the last amended complaint plaintiff had discovered that the results of her injuries were of longer probable duration than she had at first supposed.

"We find no error in the record, and the judgment is affirmed. Aeeirmed.