Long v. Clutts

MORRIS, Judge. Plaintiff brings forward and argues ten assignments of error. No. 1 is directed to the exclusion of certain medical bills, primarily the bill from Duke. It is apparent that in presenting medical bills as exhibits, plaintiff did not use the same designations given to them in the pretrial order, and there was confusion at the time of their introduction because of the mixup in designations. It is not clear from the record what the court’s ruling as to the Duke bill was. However, that was clarified at the end'of the evidence. The court announced that he wanted to get the medical bills straight. During that discussion he specifically inquired about the Duke bill, was told that it was Exhibit H, and was in the amount of $7,828.50. Whereupon the court said: “Let the record show that I am allowing that exhibit number if I earlier excluded it. I am not sure whether I did or not.” At this time, plaintiff went into all the medical bills and was in agreement with counsel and the court as to those admissible and the amount thereof. Even if plaintiff’s present contentions were correct, we can perceive no prejudice since the jury did not reach the question of damages. This assignment of error is overruled. Plaintiff next contends that the court erred in excluding evidence offered by plaintiff through her expert witness, Dr. Wandling. The witness had answered a hypothetical question and was explaining his answer. Defendant moved to strike those portions of the explanation which were not referred to nor included in the facts contained in the hypothetical question. The court properly sustained the motion. Again, plaintiff was not prejudiced. The witness was attempting to explain his answer by ruling out pulmonary embolus and heart difficulties as possible causes of Mr. Long’s condition on 25 and 26 November. There was evidence before the jury that chest x-rays and electrocardiograms had revealed no evidence of coronary difficulties or pulmonary embolus. Those facts, however, were not included in the hypothetical question. Striking these references from the witness’s answer did not preclude plaintiff from further questioning him if she wished to emphasize that evidence. Plaintiff next contends that the court committed prejudicial error in allowing a nurse to testify, over plaintiff’s objection, to what Mr. Long had told her with respect to his drinking habits. The evidence was proper for the jury to [224] consider on the issue of damages. Journigan v. Ice Co., 233 N.C. 180, 63 S.E. 2d 183 (1951). It appears from the record that to interrogatories served on each defendant, the defendants stated that alcohol had nothing to do with his condition. Plaintiff was at liberty to make this information available to the jury. The jury, however, did not reach the issue of damages, and plaintiff has not been prejudiced by the admission of this evidence. By assignments of error Nos. 4, 5, 6, 7 and 8, plaintiff contends that the court erred in overruling her objection to the hypothetical question asked the medical experts testifying for defendants. The question was a long one, as hypothetical questions usually are. The witnesses had had the advantage of having a copy to study prior to their testimony. Certain additions were made and one sentence stricken. In each instance, the witness testified that he was aware of the changes and had had time to familiarize himself with the facts recited. The question itself was introduced as an exhibit for the purpose of clarity and in the interest of not consuming more trial time than necessary. Plaintiff agreed to this procedure. Her primary objection seems to be her contention that the expert witnesses were allowed and instructed to consider the results of SMA-12 tests given on 26 and 27 November when the results were not before the jury. A study of the record, however, reveals that evidence with respect to the SMA-12 tests was given with particularity by Dr. Deaton, and Dr. Moore, and the items shown by the tests and the results of each were read to the witness in the presence of the jury. Further the record contains the following statement by plaintiff’s counsel with respect to the hypothetical question marked as defendant Clutts’s Exhibit No. 1 “We wish to point out that this does not include quite all the results of the SMA-12 test taken on November twenty-sixth and twenty-seventh, and we have stipulated that this can be included by the witness as long as he is also instructed in the hypothetical to consider all the results of those two SMA-12 tests which were in the Wesley Long Hospital record in evidence, and as long as that is made a part of the hypothetical question, we will stipulate, without waiving our objection to the form of the question and the question itself, that he can be asked the question by written form.” Plaintiff also points out that in a hypothetical question asked Dr. Myers, counsel prefaced his question “If the jury should find that ...” without the [225] requirement “if the jury should find from the evidence and by its greater weight.” This the plaintiff contends constitutes prejudicial error entitling her to a new trial. We do not agree. In this trial counsel for both plaintiff and defendants asked numerous hypothetical questions. We note that one of plaintiff’s hypothetical questions consumes five pages of the record and is subject to the same criticism she contends constitutes prejudicial error. We certainly agree with plaintiff that the witness’s opinion should be based on the hypothesis that the facts stated will be found by the jury to be true by the greater weight of the evidence. Nevertheless, we cannot say that defendants’ omission of a portion of this requirement from only one of many such questions constitutes error sufficiently prejudicial to warrant a new trial. In Ingram v. McCuiston, 261 N.C. 392, 399-400, 134 S.E. 2d 705 (1964), Justice Sharp said: “Under our system the jury finds the facts and draws the inferences therefrom. The use of the hypothetical question is required if it is to have the benefit of expert opinions upon factual situations of which the experts have no personal knowledge. However, under the adversary method of trial, the hypothetical question has been so abused that criticism of it is now widespread and noted by every authority on evidence. E.g., Stansbury, N.C. Evidence, s. 137 (2d Ed. 1963) ; McCormick on Evidence, s. 16; Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 427. Wigmore has urged that the hypothetical question be abolished: ‘Its abuses have become so obstructive and nauseous that no remedy short of extirpation will suffice. It is a logical necessity, but a practical incubus; and logic must here be sacrificed. After all, Law (in Mr. Justice Holmes’ phrase) is much more than Logic. It is a strange irony that the hypothetical question, which is one of the few truly scientific features of the rules of Evidence, should have become that feature which does most to disgust men of science with the law of Evidence.’ II Wigmore, Evidence, s. 686 (3d Ed. 1940).” Defendants’ primary hypothetical question covers 12 pages of the record. Plaintiff’s primary hypothetical question covers five pages of the record. Despite their length, we are of the opinion that they sufficiently meet the tests set out in Stans226 bury, N.C. Evidence, § 137, pp. 331-334. See also Ingram v. McCuiston, supra. We have considered all of defendants’ objections and contentions with respect to the hypothetical questions and, even conceding that technical error may appear, we find none sufficiently prejudicial to warrant a new trial. Finally plaintiff contends that the court erred in its charge to the jury. Plaintiff notes ten exceptions to the charge. These exceptions are assigned as error by assignment of error No. 9. Both in her assignments of error and her brief, plaintiff simply quotes the portions of the charge to which exception is taken with a reference to the record page on which that portion may be found. It has repeatedly been said that an assignment of error must show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729 (1966). In her brief plaintiff for argument says: “The plaintiff points out that the charge, in the portions reproduced above, and as a whole (R. pp. 377-396), while in many respects a respectable dissertation upon law, is remarkably deficient in setting forth the contentions of the plaintiff and in calling to the jury’s attention the evidence in the case and in applying to that evidence, for the guidance of the jury, the applicable law.” We assume that plaintiff contends the court erred in failing to charge the law and explain the evidence as required by statute. This is, of course, a broadside exception and will not be considered. 1 Strong, N.C. Index 2d, Appeal and Error, § 31, and cases there cited. In addition to the above, plaintiff argues that the court “unduly narrows the time and activity of the defendants which the jury might consider negligent to November 25 and 26, 1968.” Despite the ineffectiveness of plaintiff’s assignment of error, we recognize, of course, the importance of this litigation, and, therefore, address ourselves to this question. It is true that the allegations of the complaint encompass the span of time from Mr. Long’s admission to the hospital to the time of his death. However, all of plaintiff’s evidence as to negligence was directed to the diagnosis and treatment of 25 and 26 November. The hypothetical questions asked the expert witnesses were so limited. The theory of plaintiff’s case was that the negligence of defendants in diagnosis and treatment on 25 and 26 November was the proximate cause of the subsequent shock on 5 and 6 December and resulting renal failure. We are of the [227] opinion and so hold that the court did not err in limiting the jury to 25 and 26 November in its deliberations as to negligence. This trial consumed some 11 days. All parties were well represented by competent counsel both at trial and on appeal. Abundant evidence was presented to the jury who, after deliberation, found that defendants were not negligent. In the trial we find No error. Judges Brock and Hedrick concur.