Whipple v. Fidelity & Casualty Co.

Sims, J., after making the foregoing statement, delivered the following opinion of the court. In the view we take of the case it will be necessary for us to consider only one of the questions presented by the assignments of error, and that is this: 1. Was the verdict of the jury plainly without any evidence of probative value to support it, in its finding that the blindness of the plaintiff was caused by the original injury to his tooth or by the subsequent dental treatment thereof? The question must be answered in the affirmative. The uncontroverted testimony in the case is to the effect that the blindness of the plaintiff was due either to primary or secondary atrophy of the optic nerve; that primary atrophy is caused by trouble in the nervous system of the spinal cord usually; that secondary atrophy is caused by inflammation of the optic nerve, which in turn has four classes of causes — first, ocular or disease in the interior eye; second, orbital, in which there is a direct injury to the orbit, or bony cavity of the skull which contains the eye, sufficient to break the canal through which the optic nerve runs from the cranium to the eye, which would produce an inflammation which would likely be followed by atrophy; third, diseases of — 221 — the brain, such as tumors, epidemic diseases, rheumatism “and so forth ad infinitum,” diabetes, Bright’s disease “and things of that sort,” pneumonia, therumatism, lead poisoning, alcohol poisoning, wood alcohol poisoning and all the different infections or rather intoxications. A witness on this subject, Dr. Myers, in his testimony, which is not controverted by any other witness in the case, stated that “any of those things could produce an optic atrophy and I have only given just about half of them.” The testimony is also uncontroverted to the effect that the nerves from the broken tooth of the plaintiff have no direct connection with the optic nerve. That the optic nerve runs from the eye back into the skull and that to break the canal through which that nerve runs there would have to be a thrust of some instrument into the eye socket, or a blow on the head or elsewhere hard enough to break the canal. And that a man may have optic atrophy for “quite a long while” before it affects his vision. “He may be able to see quite well and still have optic atrophy perfectly proved.” The uncontroverted testimony is also to the effect that while it was possible that the force exerted by the dentist in removing the tooth of the plaintiff may have been sufficient to have broken the canal of the optic nerve and have thus caused the optic atrophy, that that was “extremely improbable.” Indeed, if the dentist had been that violent in his treatment, it could scarcely be considered other than malpractice, for the result of which the defendant could not be held liable. But, if it were granted (which is not) that the dental treatment had been shown by the evidence to have been a probable cause of the optic atrophy and it could be held that the defendant is liable for such aresult; still, that alone would not have established it as thé more probable cause of the injury complained of by the plaintiff. — 222 — The evidence for the plaintiff negatives the existence of only one of the other numerous possible causes aforesaid with any degree of positiveness. And when the utmost force and effect is given to the testimony of the plaintiff to the effect that he was not conscious of the presence of any disease, or of the existence of any other cause for the blindness, except the breaking and the extraction of the tooth;- and also to the statement of Dr. Myers, who merely examined the eyes of the plaintiff, to the effect that he (Dr. Myers) could not find any cause for the optic atrophy, there remain many other causes, all except one of which, according to the evidence, is equally probable as having been the cause of the atrophy in question as the accident to the tooth of which the plaintiff complains. We do not have to determine whether this case falls within the principle of the authorities which hold, that, where the ascertainment of the cause of an injurious result to some part of the human body involves subjects about which a layman can have no knowledge at all, the court and jury are so dependent on expert evidence that there can be no other guide, and that in the absence of affirmative expert evidence to support a verdict in such a case, the verdict must be held to be without evidence to support it. See Ewing v. Goode (C. C.), 78 Fed. 442; Robbins v. Nathan, 189 App. Div. 827, 179 N. Y. Supp. 281; Hunter v. Burroughs, 123 Va. 113, 96 S. E. 360. In the instant case, it is true, there was no affirmative expert evidence to support the verdict; but the plaintiff’s position was even worse. The only expert witness on the subject introduced by the plaintiff was Dr. Warden, who testified, in effect, that he attributed the symptoms, which he observed in his treatment of the plaintiff, to the anesthetic, which had been administered to him by the dentist (Dr. Willis), who first treated the — 223 — plaintiff, or to neuralgic pain arising from the extraction of the tooth. The other uncontroverted expert evidence in the case shows affirmatively, as above set out, that the proof for.the plaintiff leaves it more than probable that there was some cause for the injury complained of other than the one for the result of which the defendant is liable. In such a condition of the proof it .is plain that the verdict in favor of the plaintiff was without evidence to support it. The plaintiff relies upon certain facts which are shown by the evidence, namely, the facts that plaintiff’s vision was not affected until he received the dental treatment following the injury to his tooth; that he was, until that time, robust, feeling well, and in possession of all of his faculties, including sight; that coincidentally with the extraction of the tooth he experienced violent pain in the head, face and throat, and his sight became dim; that when, by means of a local application, the pain was relieved, the dimness of sight was removed, and upon a return of the pain the sight became again dim; and that this connection between the pain and the dimness of sight continued for some fifteen days, while the plaintiff was being treated by Dr. Warden. Merely from this data the conclusion is reached that the dental treatment was the cause of the .blindness. There are several obvious defects in this reasoning. First: The assumption is unwarranted that because the vision was not until then affected, the atrophy, which was the cause of the blindness, had no existence until then. This assumption is in direct conflict with the uncontroverted testimony of Dr. Myers, referred to and in part quoted above, in which he says that a man may have atrophy “quite a while” before it affects his vision. Secondly: It is matter of common knowledge, of which therefore the court will take judicial notice, that one — 224 — may be robust and feel well, and yet be afflicted with some serious, even mortal disease. And there was no evidence in the instant case of any probative value on the subject of what was in fact the physical condition of the plaintiff immediately before the dental operation in question, so as to tend to show that he was not prior thereto affected with the atrophy, due to some of its many known causes. Plaintiff contented himself with introducing one witness (Dr. Sylvester), proving merely that the plaintiff was free from one form of disease which might have caused the atrophy. Thirdly: The remainder of the reasoning holds good as far as it goes, but it does not go far enough to sustain the conclusion as a sound deduction. It makes no mention of the data with respect to the absence of any concurrence of the restoration of sight with the relief of the pain after the first fifteen days during which that coincidence was observed. It is true, of course, that the repeated concurrence of a supposed cause and effect tends to show that that relationship exists; and the greater the number of such instances of concurrence which are observed, the stronger becomes the presumption of the correctness of the assumption of the supposed relationship. But it is also true that the failure of the supposed cause to produce the effect in question, on a single occasion, accompanied by the same phenomena, will absolutely destroy the presumption being previously entertained, however well supported it may have seemed to have been by any number of concurrent events; for it thereupon becomes apparent that they were but coincidences, and that the effect which has been observed must have been due to some other cause. And, unfortunately for the validity of the aforesaid reasoning in the instant case, although the dimness of — 225 — sight was removed by each treatment during the aforesaid fifteen days, this did not occur thereafter when the pain had been then entirely relieved — which destroys all reliance to be placed on the correctness of the aforesaid conclusion, and tends to show that the blindness was due to some other cause, and one antecedent to, rather than to the pain or the eause of the pain. A learned writer on the subject of deductive reasoning and of the fallacy of conclusions deduced from a part, instead of the whole, of the data available (McCaulay’s Essay on Lord Bacon, vol. 2, pp. 239, 240, of McCaulay’s Essays and Poems), has illustrated the subject as follows: “We have heard that an eminent judge of the last generation was in the habit of jocosely propounding after dinner a theory, that the eause of the prevalence of Jacobinism was the practice of bearing three names. He quoted on one side Charles James Fox, Richard Brinsley Sheridan; John Horne Took, John Philpot Curran, Samuel Taylor Coleridge, Theobald Wolf Tone. These were instantiae convenientes” (quoting from Lord Bacon’s Novum Organum). “He then proceeded to cite instances absentiae in proximo” (again quoting from that great work), “William Pitt, John Scott, William Wyndham, Samuel Horsley, Henry Dundas, Edmund Burke. * * * In this way our inductive philosopher arrives at what Bacon calls the vintage, and pronounces that the having of three names is the cause of Jacobinism. * * * If the learned author of the theory about Jacobinism had enlarged either of his tables a little, his system would have been destroyed. The names of Tom Paine and William Wyndham Grenville would have been sufficient to do the. work.” As said in C. & O. Ry. Co. v. Catlett, 122 Va. 232, 94 S. E. 934: “* * * the preponderance of the evi — 226 — de'nce rule does not dispense with the requirement that there must be some evidence which has some logical probative value to establish a fact, before that fact can be even considered as a possible hypothesis predicated upon the evidence. * * * a fortiori, before it can be considered as the more probable hypothesis from the evidence. In other words, the preponderance of the evidence rule can operate only upon hypotheses to establish which there is some evidence in the case of some logical probative value.” - The following authorities are cited and relied on in argument for the plaintiff upon the subject under consideration, namely: Brumbaugh, Legal Reasoning and Briefing, p. 527; Shea v. Glendale, etc., Co., 162 Mass. 463, 38 N. E. 1123; Taylor v. General Accident Assurance Corporation, 208 Pa. 439, 57 Atl. 830; and Manufacturers’ Accident Indemnity Co. v. Dorgan (U. S. Cir. Ct. of App. 6th Cir.), 58 Fed. 945, 7 C. C. A. 581, 22 L. R. A. 620. In Brumbaugh, Legal Reasoning and Briefing, page 527, what is said, which is quoted and relied on for the plaintiff, is as follows: “One of the most natural, simple and effective methods of organizing evidence for argumentative purposes is that afforded by the relation of cause and effect. It yields a tremendous leverage in forcing the mind to a conclusion, for the mind, however untrained and elementary in its mode of thought, can not escape the logical cogency of a canvas of facts which furnish an adequate cause, disclose an opportunity, and finally reveal subsequent results which find no solution or explanation, except upon the basis of the validity of the preceding circumstances.” (Italics supplied.) This statement is correct and is an admirable illustration of the accuracy and convincing force of the method of deductive reasoning. But, as appears from what is said above, — 227 — the proof for the plaintiff does not bring the instant ease within the influence of such statement. In Shea v. Glendale, etc., Co., it was decided that proof of the fact that persons, working under conditions like those under which the plaintiff worked, were affected in a manner like that in which the plaintiff was affected, was admissible in evidence as tending to support the inference that they were all injured by the same cause, namely, the poisonous condition of the atmosphere in the room where they worked. Moreover, in that case a physician testified that the illness of the plaintiff was probably a consequence of the poisonous condition of the atmosphere. In Taylor v. General Accident Assurance Corporation the plaintiff’s intestate died as the result of being injured by a fall. There.was an autopsy and affirmative medical expert testimony to the effect that the fall caused the death. The only question at issue was whether the fall was accidental or not accidental; and the court held that as the autopsy disclosed that the fall was not caused by any diseased condition, within the meaning of the insurance policy, the accidental character of it might properly be inferred from the circumstantial evidence. In Manufacturers' Accident Indemnity Co. v. Dorgan, also, there was a fall, and an autopsy which disclosed that the fall of the deceased was not caused by any diseased condition, within the meaning of the insurance policy. That being so, the court held that the jury could properly infer the accidental character of the fall from the circumstantial evidence. A distinguishing feature of both of the two cases last cited, which is wholly absent from the case in judgment, is that, in those cases, there was affirmative evidence, derived from the physical examination at the autopsy of the body of the person injured, to the effect, that the — 228 — injury complained of was not caused by any diseased condition of the person existing prior to the injury. It is urged in behalf of the plaintiff that the defendant is estopped by asking for instruction No. 1 from taking the position that there is not sufficient evidence to sustain the verdict of the jury in finding that the blindness was caused by external, violent and accidental means, since the question whether such was the cause of the blindness was submitted to the jury at the request of the defendant by that instruction; and authorities are cited in behalf of the plaintiff to sustain that contention, including Kimball & Fink v. Friend, 95 Va. 135-6, 27 S. E. 901; Richmond Traction Co. v. Clarke, 101 Va. 392, 43 S. E. 618, and Gatewood v. Garrett, 106 Va. 554, 56 S. E. 335. These authorities do hold that, where a party is granted instructions upon the theory that there is, or is not, evidence in the case bearing on á certain question, he is estopped from denying that there is, or is not, as the case may be, any evidence whatever on the subject of the instruction. But that falls far short of holding that such party is, after verdict, precluded from making a motion to set aside the verdict on the ground that it is contrary to the evidence, or without sufficient evidence to support it. And such authorities have no application where, as in the instant case, the instruction is upon the subject of the cause of the injury complained of, and there is evidence upon that subject, but that evidence leaves it equally probable that the injury was due to some one of two or more causes, for only one of ■ which the defendant is liable. In such case it is the lack of any preponderance of.evidence to support the verdict which leaves it without sufficient evidence to support it. The case under review must be affirmed. Affirmed.