Opinion
Rehearing Denied March 27, 1930
Hearing Granted by Supreme Court April 24, 1930
Appeal from Superior Court, Alameda County; Leon E. Gray, Judge
Action by Sally C. Adams against Edgar Kaiser and others. Judgment for plaintiff, and defendants appeal.
Reversed.
COUNSEL
Cooley, Crowley & Gallagher, of San Francisco, for appellants.
Ford & Johnson, of San Francisco, and Crosby & Crosby, of Oakland, for respondent.
OPINION
DOOLING, Justice pro tem.
Plaintiff, while crossing the street in the city of Piedmont, was struck and injured by an automobile driven by defendant and appellant Edgar Kaiser. She brought suit against Kaiser, who was a minor, and his parents, and after a jury trial recovered a judgment, from which this appeal was taken.
Respondent was a woman about 57 years old, and mortality tables were introduced to show her expectancy of life. Appellants, after introducing testimony that prior to the accident respondent had been suffering from certain functional disorders, asked the following questions of a medical witness:
"Have you any opinion as to about how many years this lady would have lived with those diseases and those troubles that you say existed before the accident, disregarding the accident?"
"Have you an opinion, at the present time, about how long this lady will live in her present condition?"
To these questions objections were sustained.
We believe that the sustaining of these objections was prejudicial error. While the question has never been decided in the appellate courts of this state, the weight of authority is in favor of the admission of testimony of this character. The Supreme Judicial Court of Massachusetts in the case of Fournier v. Zinn, 257 Mass. 575, 154 N.E. 268, said: "A physician called by the plaintiff was allowed, subject to the defendant’s exception, to state his opinion of the probable duration of the plaintiff’s life. He said that, taking into account the plaintiff’s physical condition if he had not received the injury complained of, he would live about nine years; that because of the accident, he would probably live about four years from that time. This evidence was admissible."
The Court of Appeals of the state of New York, in passing upon a similar question in Alberti v. N.Y., etc., R. Co., 118 N.Y. 77, 23 N.E. 35, 37, 6 L.R.A. 765, used the following language: "He [Dr. Lewis] was then asked to state the length of time that the plaintiff may live, in the natural and ordinary course of events. This was objected to, and the court ruled that he might answer if he could speak with reasonable certainty in reference thereto. The doctor answered that he could only give the probability from the history of other similar cases, and this he was permitted to do, under the objection and exception of the defendant. It will be observed that as to the latter answer the answer was as to the probability, and that in the former question he was called upon to express his opinion in reference to the result of the disease in the natural and ordinary course. It is claimed that this evidence is objectionable, under the case of Strohm v. New York, Lake Erie and Western Railroad Co., 96 N.Y. 305. In that case the question was as to what might or may develop, and was not as to what would probably or was reasonably certain to develop. This question was considered in the case of Griswold v. N.Y.C. & H.R.R. Co., 44 Hun, 236, affirmed 115 N.Y. 61, 21 N.E. 726, 12 Am.St.Rep. 775, and was again considered by us in the case of McClain v. Brooklyn City R. Co., 116 N.Y. 459, 22 N.E. 1062, and under the rules laid down in these cases we consider the evidence competent."
In Buell v. Park Auto Transportation Co., 132 Wash. 92, 231 P. 161, at page 164, the Supreme Court of Washington, in holding admissible testimony of physicians that the injuries received by respondents had a tendency to shorten their lives, said: "Such testimony is of the ordinary nature of opinion evidence of medical experts." To similar effect see Larsen v. Home Telephone Co., 164 Mich. 295, 129 N.W. 894, 905; Moses v. Mathews, 95 Neb. 672, 146 N.W. 920, 922, Ann.Cas.1915A, 698; Memphis St. R. Co. v. Berry, 118 Tenn. 581, 102 S.W. 85, 90.
It has been recognized by our own Supreme Court in Townsend v. Briggs, 99 Cal. 481, 34 P. 116, that mortality tables are only prima facie evidence of the expectation of life of a particular person, and that evidence of conditions tending to decrease the expectation of life of such person is admissible. Respondent in her briefs and on oral argument cited only one case in support of the ruling of the trial court excluding this evidence, Chicago, etc., v. Long, 26 Tex.Civ.App. 601, 65 S.W. 882, and our independent research has not discovered any other. This case apparently stands alone, and is further weakened as an authority by the fact that the same court which decided it, in Houston Electric Co. v. McDade, 34 Tex.Civ.App. 497, 79 S.W. 100, 101, held that a medical witness was properly allowed to testify that the injury to plaintiff would probably shorten her life expectancy one-half. The court, without referring to its previous decision relied on by appellants here, disposed of this point by saying: "The objection that this evidence was only the conclusion of the witness is not tenable, as against expert testimony."
We are satisfied with the rule laid down generally in other jurisdictions that, where the party to an action is suffering from some ailment or disability which has a tendency to shorten his life, medical experts may properly express an opinion as to the probable expectancy of life of such party. As said by the Supreme Court of Michigan in Denman v. Johnston, 85 Mich. 387, 48 N.W. 565, 568: "Such testimony must necessarily be problematical, but perhaps it is the best that is attainable to establish the probability."
The judgment recovered by respondent was a large one, and, in view of the fact that the amount of her recovery depended upon her expectancy of life as determined by the jury, the error in excluding the testimony herein discussed was prejudicial.
We find nothing in appellants’ claim that respondent was guilty of contributory negligence as a matter of law. While the evidence was to the effect that respondent did not look in the direction from which appellants’ automobile was coming while she was crossing the street, there is evidence from which the jury could reasonably find that appellants’ machine passed another machine moving in the same direction on its right-hand side, in violation of the statute, at a speed of from 35 to 40 miles per hour, and struck respondent as she stepped out from in front of the other machine. Under these circumstances, conceding respondent’s failure to look was negligence, the jury could find that, if she had been looking, she would not have been able to avoid the automobile which appeared suddenly and unexpectedly at a place where it was not entitled to be. Under such a finding respondent’s negligence, if it existed, would not be a proximate cause of her injury. The court properly instructed the jury as to the speed at which an automobile may be driven in a residential district; there being sufficient evidence to support a finding that the place at which she was injured was such a district.
Appellants complain of the admission of evidence that respondent had been a school teacher in other states, and that, while she was not qualified to teach in the public schools of California, she was at the time of her injury qualifying herself to become a teacher in the schools of this state by taking summer school courses at the University of California. We cannot find error in the admission of this evidence, since the jury is entitled to know, not only what occupations the respondent was able to engage in, but also any occupation which she might have a reasonable probability of engaging in in the future.
The failure of the court to give two proposed instructions as to certain admissions in the pleadings was apparently erroneous (Tevis v. Hicks, 41 Cal. 123, 126), but this error is not likely to recur on a second trial. Because of the error first herein discussed, the judgment is reversed.
We concur: NOURSE, Acting P.J.; STURTEVANT, J.