Opinion
No. 3082.
Decided June 22, 1939.
CASE, to recover for personal injuries sustained by the plaintiff in a collision between an automobile in which he was riding and a motor bus owned by the defendant company and operated by the defendant Frank L. Conley. Trial by jury and verdict for the plaintiff against both defendants.
There was evidence that the plaintiff received an injury to his shoulder and that this injury consisted of a ruptured tendon. The defendants excepted to a certain ruling of the court as shown in the following extract from the testimony of Dr. Mocas, a physician who had treated the plaintiff:
"Q. What is the probability as to the future, as to whether it [the injury] is getting any better or worse or not? A. An operation may help him; to go in there and suture the tendon. Q. If you operate on him, what will have to be done? A. We'll have to take a chance. Q. Take a chance that it may help him and may not? A. Yes. Q. Did you ever, in your experience, have an injury similar to this? A. I had one. Q. Did you operate on that one? A. A specialist operated. Q. Who is the specialist? A. Dr. Jones of Manchester. Q. And did that operation give relief? A. No improvement at all. Mr. Tobin: Objection. The Court: Overruled. Mr. Tobin: Exception. Mr. Davis: May we have an exception also? The Court: Certainly."
Various other exceptions taken by the defendants have been waived. Transferred by Burque, C. J.
Bertis A. Pease, Jeremiah J. Doyle and Robert J. Doyle, for the plaintiff.
Devine Tobin, for the defendants.
The defendants contend that the evidence was improperly admitted (1) because "Dr. Mocas did not perform the operation and the exact nature of the injury suffered by the patient, the location of the injury, type of operation, and the points of similarity were not proved," and (2) because the jury "was left to infer that because an operation was unsuccessful in one isolated case, the complete facts of which were not stated, that it would be of no avail in the case at bar."
Neither of these contentions was advanced at the trial, and no objection was interposed during the doctor's statements that he had had only one case of a similar injury and that another physician had performed the operation in that case. The only exception taken relates to the doctor's answer that his patient showed no improvement after the operation. Although the witness did not profess to be competent to perform the operation, he could be found qualified unquestionably to express an opinion as to his patient's physical condition. There is nothing in the evidence to substantiate the defendants' contention that this opinion was "based in part on conversations with Doctor Jones."
The testimony of the witness amounted merely to an assertion that so far as his experience permitted him to judge, and his experience included the treatment of a similar injury, the chance that the plaintiff's condition would be improved by an operation was problematical. The evidence was admissible.
If the defendants believed that the doctor's conclusion was based on insufficient data, they should have requested the Presiding Justice to strike the evidence from the record on that ground or have adopted "some other convenient procedure to bring their complaint specifically" to his attention. Ricard v. Insurance Co., 87 N.H. 31, 34. The exception is overruled.
Judgment on the verdict.