National Dairy Products Corp. v. Durham

Felton, Chief Judge. Our ruling is confined to the sole issue argued in appellants’ brief, i. e., whether there was sufficient evidence to authorize the finding that the defendants’ negligence caused an acceleration and aggravation of a pre-existing embryonal carcinoma of the left testicle, resulting in the eventually fatal spread of the disease throughout decedent’s body. Supporting this causal relation is various medical evidence, although not uncontroverted or absolutely conclusive. Dr. Edwin McDowell, decedent’s personal physician, testified substantially as follows: That a collision such as was alleged would, in his opinion, almost unavoidably put pressure on all of the decedent’s abdominal and pelvic organs; that such pressure in sufficient degree could possibly release bacteria from a pre-existing infection in one organ and cause its spread within or possibly beyond that organ; that, conceivably, pre-existing infection in the prostate gland could be transmitted down the spermatic cord to the epididymis; that people can have such infections without being aware of them, which was true in the decedent’s case; that, in his opinion, the decedent’s cancer originated in the left testicle and that it could have spread from — 422 — there to other areas of the body both by the lymph channel and the blood stream; that he had originally diagnosed decedent’s ailment as epididymitis, as evidenced by a swelling of the epididymis. Dr. James Lea, Jr. testified substantially as follows: that there exist malignant tumors which lie latent and dormant without particularly growing or spreading, sometimes for years; that epididymitis is an inflammation of the epididymis gland which could be brought on by a blow or pressure, not necessarily applied directly to the scrotum, but also to the lower abdomen, so as to temporarily obstruct from that area the blood or lymphatic supply or venous drainage; that epididymitis due to an infection would probably have no effect on a dormant latent embryonal carcinoma in the testicle, but that a blow or pressure causing epididymitis might conceivably squeeze the tumor cells into circulation and into adjacent areas; that, in his opinion, the collision had not directly caused the decedent’s cancer, because, even if trauma could produce cancer, which is disputed, it would take longer to do so than the two or three days after the accident, at which time the evidence of the cancer—the swollen testicle— appeared; that a possibility exists, however, that, if cancerous cells were present at the time, trauma induced by pressure from a seat belt might have led to an inflammatory condition in the testicles, which, .in turn, would lead to release of cancer cells into the local area, and to more distant parts of the body. The above medical evidence is sufficient to establish the possibility of a causal relation, even if it falls short of showing probability. The cases requiring affirmative medical evidence of probability, such as Ladson Motor Co. v. Croft, 212 Ga. 275 (92 SE2d 103); Savannah River Lumber Co. v. Bush, 37 Ga. App. 539 (140 SE 899); Atkinson v. Fairforest Co., 90 Ga. App. 425 (83 SE2d 243); Atlanta Transit Co. v. Knight, 92 Ga. App. 469 (88 SE2d 738); Callaway Mills Co. v. Hurley, 100 Ga. App. 781 (112 SE2d 320) and cit., are distinguishable in that they involved issues of causation which, by the nature of the situation, could be resolved solely by expert medical evidence standing alone, in which cases the evidence must naturally be — 423 — based at least on reasonable probability. “It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation.” 135 ALR 517. (Emphasis supplied.) The medical testimony in the present case is not standing alone, however, but is supplemented by other, non-expert evidence. “There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of a causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.” 135 ALR 516, 532. See also 2 ALR3d 384, 387. The uncontradicted evidence as to the decedent’s general health prior to the collision was that it was excellent and that he had had no prior difficulty with his testicles, prostate, urinary tract or kidneys, etc. There was also evidence that, within a day or so after the collision, the decedent’s urine was a very dark, rusty, muddy color (which Dr. Lea testified could be evidence of a blow sufficient to have damaged the bladder, which could have resulted from the collision), that he was sore right above the crotch, where his seat belt had been, and that his left testicle was sore, tender and subsequently greatly swollen. It was shown that the decedent underwent a gradual physical decline from the time of the collision until his death, some nine months later. Thus, the medical evidence established that there must have been pre-existing, latent, dormant cancer, which could have been activated and spread as a result of the collision and the non-expert testimony established the decedent’s apparent good health prior to the collision and the onset of cancer symptoms closely following the collision. The finding that the — 424 — collision was the proximate cause of the aggravation and acceleration of decedent’s pre-existing, latent, dormant cancer was authorized by the combination of the medical evidence (which was about as positive as it could have been concerning a disease about which there is admittedly so much unknown by the medical profession) and the non-expert evidence, which was consistent with and corroborative of this theory of causation. See Lockheed Aircraft Corp. v. Marks, 88 Ga. App. 167 (76 SE2d 507); Fireman’s Fund Indemnity Co. v. Moody, 100 Ga. App. 690 (112 SE2d 202). The verdict and judgment were authorized by the evidence and the judgments of the court overruling the motions for new trial and judgment n.o.v. were not error for the contended reason. Judgment affirmed. Hall, Pannell, Deen and Quillian, JJ., concur. Bell, P. J., Frankum, P. J., Jordan and Eberhardt, JJ., dissent.