187 Tenn. 202 | Tenn. | 1948
Lead Opinion
delivered the opinion of the Court.
A passenger train of the Nashville, Chattanooga & St. Louis Bailway Company collided on April 2, 1943 with another of its trains at Bruce ton. L. P. Jackson, who
Jackson suffered from what he says is a hernia and an affliction of the penis called peyronie’s disease, described by the doctors as being “similar to a callus under the skin”. The opinion is expressed by some of these doctors that the latter ailment could have been caused by a lick.
It is the insistence of the railroad that all the pain and suffering, if any, of Jackson and his loss of time came from these two ailments and, pursuant to its position that there is no evidence of a causal connection between these alleged afflictions and the collision, assigns as error the action of the Court of Appeals in not sustaining its assignment of error directed to the proposition that the trial court erred in failing to direct a verdict for the defendant, as requested, because, so the railroad alleges, there is no competent evidence that the injuries for which damages are sought were the result of the collision. An assignment of error going to the same point asserts as error the refusal of the trial court to instruct the jury that no award of damages may be made on acount of the alleged hernia or penis trouble “because there is no evidence upon which such an award of damages can be based”.
However, the Court of Appeals further held that after excluding evidence of the two alleged injuries above stated “we find ample evidence of excruciating physical pain and suffering, and mental anguish, and loss of wages, as hereinabove outlined, the aggregate amount of the actual pecuniary damages suffered being far in excess of the amount of the verdict and judgment of $2750.00. The actual loss of wages for the first year suffered by plaintiff was in excess of $4,000.00, to say nothing of the pecuniary loss sustained during the other years prior to this trial.”
In its petition for certiorari the railroad insists that there is no evidence of any pain, suffering or loss of wages, other than that which came from the alleged hernia and alleged penis injury and, therefore, the Court of Appeals was in error in holding that it was not prejudiced by the erroneous failure of the trial judge to give the jury instruction in question.
There was expert testimony in this record that the hernia affliction could be remedied by a minor operation. There was other such evidence that, this was a major operation. By reason of this testimony, the trial judge instructed the jury that if the alleged hernia could have been remedied by an operation to which a person acting with ordinary care would have submitted, then any damages which resulted from a neglect or failure to submit to such an operation could not be awarded Jackson. The jury, after considering its verdict for a while, returned into Court and inquired as to whether that instruction meant that Jackson could not recover at all. After receiving'a negative reply and after having further considered as to its verdict, the jury again returned into Court and requested the judge to again read to it this special instruction as to mitigation" of damages. The instruction was again read and thereafter the jury returned into Court with the verdict stated.
■ Thus, it-is made manifest that the jury in awarding its verdict did take into consideration the hernia. Therefore, if the trial court was in error, as the Court of Ap
The result just stated would follow since Jackson, or rather his administrator (Jackson having died since this trial) has filed no petition for certiorari or assigned error to the finding of fact of the Court of Appeals that there is no competent evidence of a causal connection between the hernia and the collision, Kenner v. City Nat. Bank, 164 Tenn. 119, 124, 46 S. W. (2d) 46; Lloyds America v. Duck, 174 Tenn. 520, 522, 128 S. W. (2d) 625, unless the Court of Appeals erred, as a matter of law, in holding that only expert evidence under the facts of this case could be looked to in ascertaining whether there is any substantial evidence of a causal connection between the hernia and the collision. In the latter event, if the Court of Appeals made a mistake of law but reached the right conclusion upon an erroneous view, its conclusions will be upheld based upon the correct rule of applicable law, notwithstanding respondent’s failure to file petition for certiorari or assign error. Sheafer v. Mitchell, 109 Tenn. 181, 193, 71 S. W. 86.
So, this suit is reduced to a consideration of the question as to whether the Court of Appeals committed error, as a matter of law, under the evidence in this case in holding that only expert evidence could be examined in ascertaining whether there was any substantial evidence of a causal connection between the hernia and the collision. Consideration of that question necessitates some review of the evidence.
' In March of 1943 prior to the collision the next month, Jackson was examined for life insurance by Dr. Scales, who says that he gave him a very thorough examination and found no evidence of hernia. This same doctor on May 10, 1943 after the collision in April examined Mr. Jackson who was then suffering considerably, and did find a hernia, he says.
At the time of this collision Jackson was earning a salary of $225 per week and attending to his business at all times. After the collision he was never able to again pursue his duties in this position and in the course of a few months was forced to give it up and accept much lighter work in which he earned an average of $50 per week.. There is no evidence of anything having happened to him in this interval other than the experience to which
At the time of the collision Jackson was sitting at a table in a dining car of the train. The impact threw him violently, he says, against the table and the chairs and under the table and on the floor, and he received what he describes as a very hard blow upon his stomach and penis by these parts of his body being thrown against the table or chair. Immediately, so he says, he began to suffer considerably. He went on to Nashville and his suffering was such that night that he consulted the hotel clerk as to the obtaining of a doctor, but none was readily available by reason of the scarcity of doctors during the war. He was directed the next morning to go across the street to the clinic of Dr. Nelson, a highly reputable and capable doctor. He was examined, but his suffering was not relieved and at the suggestion without improper motive of Dr. Nelson he was taken by the latter to the railroad’s physician, Dr. Eve, another very reputable and outstanding doctor, and-was examined by these two doctors. Dr. Eve testified that there was no evidence upon his stomach of having received any blow thereon. Dr..Nelson, who participated in this examination, testified that there was a moderate contusion on his stomach. A night or so later the suffering of this man became so intense that he was taken in the night to a hospital and administered a considerable quantity of morphine. Dr. Nelson says that in his opinion he was passing a kidney stone. He bases this upon the fact that he passed some blood. No kidney stone was found. The suffer
In view of the continued suffering of Mr. Jackson he went in the early part of May to Mississippi for consultation with and examination by Dr. Scales and Dr. Cox, they having been his doctors for some years. Dr. Cox was the man who had carefully examined Jackson for life insurance in March and at that time found no hernia. These two doctors are likewise reputable and capable. They testify that their examination disclosed a moderate hernia. They, too, took X-ray pictures which did not disclose the hernia. Both testified that it “frequently happens ’ ’ that a hernia of this character is not found by an X-ray and in fact that it is- “very unusual that you find it with an X-ray”. Just before the trial in 1947 Jackson was sent by one of these doctors to an
In the light of this evidence of those experts who testified at the instance of Mr. Jackson, his fine physical condition and total absence of pain and suffering up to the time of the collision, all as testified to by himself and Mr. Carpenter as compared to his condition, pain and suffering immediately and continuously thereafter, though not expert testimony, became quite relevant, com-
The learned Court of Appeals was, therefore, wrong in holding that the trial judge committed error in not instructing the jury that it could not award any amount of damages for a hernia on the ground that there is no evidence upon which such an award could be based. This applies likewise to the condition with reference to the penis, since Jackson testified that he received a blow there in this collision and that condition did not exist prior thereto, and one of the experts testified that its condition could have resulted from a blow.
The record is replete with evidence that Jackson suffered much pain, both physical and mental, and was subjected to very substantial loss of earning capacity by reason of this hernia which the experts testifying in his behalf say that he did have, and which they say could have resulted from the blow he received, and which the jury was justified in finding did result from the blow received in that collision, in view of the uncontradicted evidence as to his fine physical condition and lack of suffering continuously before the collision followed by the
It is apparent from what is said above that when the Conrt of Appeals held that the judgment of the Circuit Court should be affirmed it reached the right conclusion, even though that conclusion is based upon an erroneous ground. However, since it did reach the right conclusion its action in affirming the judgment of the Circuit Court will not be disturbed since, as heretofore stated, the well settled rule is that when the Court of Appeals reaches the correct result, but upon a mistaken theory as to the law, this Court, when considering a petition for certiorari, and basing its decision upon what it concedes to be the correct theory of the law, will not disturb that action of the Court of Appeals.
This in substance disposes of all assignments of error other than the one directed to the proposition that the damages are excessive. No doubt counsel predicate that proposition upon the theory that no damages could be awarded for the hernia, a theory which we have been constrained to reject. At any rate, we are of the opinion that there is nothing in this record to indicate that the sum awarded was the result of passion, prejudice or caprice. "We cannot, therefore, disturb the award.
The petition for certiorari is denied.
Rehearing
The petition to rehear insists that “ there was no expert testimony causally connecting plaintiff’s hernia— if any, with the accident; and these questions should not have gone to the jury; that, therefore, this Court is in error in holding as a matter of law that there was any evidence to support a verdict based on plaintiff’s hernia, contrary to the positive expert testimony (of petitioner’s witnesses) that Jackson’s hernia, if any, could not have resulted from the collision as described by him”.
Petitioners cite National Life & Accident Insurance Co. v. Follett, 168 Tenn. 647, 80 S. W. 2d 92, 95, and the unreported case of Brooks Sand and Gravel Co. v. Alfred Bond,
In National Life & Accident Insurance Co. v. Follett, supra, Follett died within a few hours after he came into his home suffering great pain and told his wife that he had fallen. An autopsy was performed, and three doctors testified that his death was due to a diseased condition of his organs. Two others, in response to an hypothetical question,, gave it as their opinion that the alleged fall was the cause of his death. If his death was the result of a fall, then under his accident policy the insurance company was liable. Otherwise, if his death resulted from diseased organs. In that case, the Court rejected two insistences not at issue in the instant case. It held that the statement of Follett to his wife that he
Keeping «in mind the quotation above, we' note the statement in the petition to rehear that Dr. Cox and Dr. Robertson testified that they “ could not tell whether the hernia was of recent or iong duration; plaintiff could have had it for ten years and not have known it”. The uncontradicted evidence is that one month prior to the collision Dr. Scales made a very thorough examination of Mr. Jackson in connection with the latter’s application for insurance. He found no hernia. One month after the collision, this same doctor again examined Jackson and did find a hernia. We think that in view of this expert testimony, there is quite substantial evidence that the hernia of Mr. Jackson was of origin quite recent to its discovery by this expert. That discovery was shortly after the collision in which Jackson was injured.
Further, the undisputed evidence is that continuously up to the time of the collision, Mr. Jackson was in perfect health, a person of vigor and activity. He was an afflicted, disabled and suffering man continuously thereafter.
Jackson testified (and we must accept as true his testimony upon the issue here) that there was upon his stomach physical evidence of the receipt of the blow which he received in that collision. It is true that one of the experts, called as a witness by petitioner, testified that he observed no evidence of a blow upon his stomach. Another, likewise called as a witness by petitioner, testified that he did find some evidence of a blow upon Jackson’s stomach. They both give it as their opinion that the objective evidence which Dr. Nelson observed was insufficient to bring about a hernia, nothwithstanding the fact that after this collision he did have one, according to three experts; but did not have á hernia when carefully examined a month before the collision by one of these three, in so far as that one could discover. It seems to be conceded that a blow in the stomach can cause a hernia, and one of the doctors says that the “usual cause of a hernia” is “some sudden wrench or traumatism . . . a sudden wrench will sometimes tear those muscles”.
Notwithstanding the contrary emphatic assertion of petitioner’s counsel, we are entirely unable to escape the conclusion that all the evidence detailed in the paragraphs above is substantial evidence that the hernia was
In a case where there is evidence of the character appearing in the record of this case the true rule, we think, is stated by this Court in Tibbs v. Equitable Life Assur. Soc., 179 Tenn. 594, 599, 168 S. W. 2d 779, 781, viz.: “When the case concerns a. highly specialized branch of medical science, with respect to which a layman could have no knowledge (as to the length of the prior existence of an ulcer which had ruptured), the court must depend upon expert testimony; and, in such case, in the absence of substantial evidence to the contrary, it is improper to submit the issue to the jury.” (The emphasis is ours.)
The rule as re-stated in that case seems to be the rule generally. It is expressed in 20 American Jurisprudence, pages 731-732 thus: “Opinions of medical experts as to the cause of . . . personal injuries . . . based on personal observation and examination ... go to (the jury) to be weighed along with the other evidence in passing on the question of causation”. (Emphasis is ours.) From that which we have hereinabove said, it is clear to our minds that there is, in addition to the opinion of the medical experts testifying for the petitioner, “substantial evidence” contrary to their opinion. So, the trial judge was correct in submitting the issue to the jury.
Referring now to the unreported Sullivan County law case of Brooks Sand and Gravel Co., Inc. v. Alfred Bond,
In the instant case, as we have seen, there is positive testimony to the effect that a thorough examination by an expert very shortly prior to the train collision failed to disclose that respondent had a hernia. To the contrary, he was then in perfect health. An examination by the same expert very shortly after the blow disclosed a hernia. A usual cause of a hernia is a blow or wrench, so one expert in this record testifies. To that important extent, the case cited is wholly at variance with the instant case.
Further, in the case cited, there was no evidence whatever, physical or circumstantial, to the effect that dust had caused the turberculosis. To the contrary, the un-contradicted testimony of several experts was that the x-ray pictures “found nothing . '. .to indicate the
The petition to rehear is denied.
Not designated for Publication.
