Kelley v. Light

DENECKE, J. The only issue in this personal injury case is whether there was evidence to support the trial court’s submitting the issue of permanency of the injury to the jury. The plaintiff’s head went through the window of her car lacerating her head. At the time of the trial, two years after the collision, plaintiff had a scar running from the middle of her forehead down and across her left eyelid. The prominence of the scar was in dispute; however, the plaintiff testified she was aware of it; that the area remained numb; and that her left eyelid drooped. The jury awarded plaintiff $7,125. The existence of a scar two years after an accident is itself sufficient evidence of permanency. Senkirik v. Royce, 192 Or 583, 593-594, 235 P2d 886 (1955). In addition there was the following evidence. On cross-examination the plaintiff testified: "I expect to have the drooping of my eyelid fixed. They can’t do anything to the upper part of the scar, because it is going against the lines. It is going down * * *. But the only thing that they can do is fix this part right here [indicating] so that it wouldn’t droop as much when I got older.” Based upon plaintiff’s previous testimony and attempts to testify, we believe plaintiff’s testimony above quoted was hearsay, probably being a restatement of what her surgeon told her. Her surgeon did not testify. Hearsay testimony which is not objected to, however, is competent evidence. Kraxberger v. Rogers, 231 Or 440, 451, 373 P2d 647 (1962). Affirmed.