Rosenburg v. State Ex Rel. Ambrose

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered against the appellant in favor of the appellee for injuries sustained by J. Herbert Ambrose, the husband of the equitable plaintiff, 'which resulted in his death, and which it is alleged were caused by the negligence and want of care on the part of the defendant (appellant) in operating an automobile. Mr. Ambrose was riding on the back seat of a motorcycle, owned and operated by Clarence Erey, which it is alleged in the nurr, collided with and was struck by an automobile being driven by the defendant. The accident occurred on the 22nd day of August, 1914, and Mr. Ambrose died on May 22nd, 1915.

At the beginning of the trial below it was “stipulated and agreed that the death of J. Herbert Ambrose resulted from sarcoma, leaving the cause of the sarcoma open for determination under the evidence in this case.” The appellee claims that it was the result of the injury, while the appellant contends: First, that there was no legally, sufficient evidence of any negligent act- or omission by her causing tho accident; and second, that there was not- sufficient legal evi ⁴²⁰ deuce from which a jury could have properly, found that the injury caused sarcoma. There are seven hills of exception relating to the admissibility of evidence; and an eighth which presents the rulings on the prayers. The plaintiff offered two prayers, which were granted, and the defendant offered twenty; the ninth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, sevententh and eighteenth of which were granted, and the others rejected. The defendant also filed special exceptions to the granting of the plaintiff’s, first prayer, which were overruled.

The' first exception was to allowing a hypothetical question to be asked and answered by Dr. John S. Manger, and the second was to overruling a motion to strike out his answer to that question. The question was1 as follows: “Row, then, it has been testified that J. Herbert Ambrose, prior to August 22, 1914, was a young man of apparently good health and physical condition and apparently had no trouble with his left leg; that in a collision that occurred on that day between an automobile and a motorcycle; upon which he was riding, he was hurled with great force either against the automobile or upon the- ground, and badly jarred and shaken up and bruised upon the left knee; that he was confined to his house for several days, and then resumed work; that shortly thereafter he began to experience trouble with his left leg which caused him to limp; that the condition of his leg gradually grew worse and the leg began to swell between the knee and the thigh; in the latter part of Rovember, 1914, the leg was opened and it was discovered that he was. suffering from osteoid sarcoma. Assuming' all these facts to be correct, will you state what, in your opinion, was the cause of the osteoid sarcoma ?” The answer Avas: “It was due to traumatism.” Without deeming it necessary to discuss separately the ruling in the first exception, we are forced to the conclusion that there was error in not striking out the answer to the hypothetical question. Dr. Manger had testified in chief that sometime prior to Christmas of 1914, J. Herbert Ambrose called at his office ⁴²¹ and asked him to examine Ms leg—stating that he had been injured.

Two or three weeks after he first examined Mm he had him taken to the hospital, where an exploratory incision was made, and Ms leg opened up for examination. He was present when the leg was opened and he described the conditions that, were found, and said that “there was a culture made of it and the growth was found to be malignant.” He further testified that: “The diagnosis, when I first seen it, was a probably simple periostitis. We mean by that an inflammation of the tissues surrounding the bone, the periosteum, the covering, and we sometimes have that with an ordinary injury, a blow or anything of that kind. After the leg was opened up, and the culture made, it was determined to be a form, of sarcoma.

There is a difference in sarcomas; some of them we do not know where they come from. They are malignant growths that appear at certain ages and places. Susceptibility probably has something to do with it, and there is another kind called osteoid cancer, which is a. cancer produced by a blow' or an injury more frequently than any other way. There are a few cases where they can come without- an injury, but these are the ones that develop1 the most rapidly.

In this case I diagnosed it as osteoid cancer. * * * Osteoid sarcoma is a malignant growth which develops very raj) idly— one of the most rapid developments- we have where .there is an injury received.” He also said: “Traumatism is an injury—the coming together of the limb or bone wit-b anything, any bard substance'—rock, iron, stone or anything. It was due to the injury. Sarcoma is more progressive when produced by an injury. It is very much more rapid.” Then on'cross-examination he said: “Sarcoma is perfectly painless at times.

There is no way to determine its presence until the swelling begins. It varies in rapidity of growth with the conditions and the persons, developing slowly sometimes and rapidly sometimes. In the same person it may start slowly and then develop rapidly. We cannot tell by examination when ⁴²² the sarcoma really began.” In his cross-examination the following also appears: “Q. How, the ordinary history of sarcoma of the great—the vast majority of ’the oases of sarcoma, has no reference to any traumatism at all, has it?

A. Ho. * * * Sarcoma is occasionally associated with an accident, in my mind. The cause of sarcoma is not definitely known. It is caused by an injury at times. We know that, but other conditions we do not know.

Accident does not always cause sarcoma. Q. The form of sarcoma that Mr. Ambrose died from could have developed in a purely natural manner—that is, without the connection of any traumatism or injury, could it not? I do not mean in this case, but just taking another case, that type of sarcoma could have developed without any accident at all? A. Oh, yes, yes.

It would not have had as rapid a termination, of course. When you asked me the question, I was bound to say they are not all due to traumatism, not all caused by injury; but as I say, they can come without any injury at all to any parts of the body, the legs, arms, mouth, anywhere. Q. (Mr. Poe) : But you say they would not have had such a rapid termination as in this case?

A. Ho, not usually. The rapidity of the growth of sarcoma, even where it comes without traumatism varies, and varies in the same patient sometimes. As with every disease, it may start slowly,. and later become rapid. Time does not play an important part, except where there is an injury, and then the time is very much less.

Q. Doctor, in order to assume that a previous traumatism has any bearing on the development of a sarcoma, I would have to state to you the time when the traumatism occurred, or the accident occurred, the place where the accident occurred, and the extent of the injury, would I not? A. Yes. Q. So in order for you to, especially in this class of sarcoma of the periosteum, say, you would have to know the injury to the periosteum in order to decide whether that sarcoma had anything to do with the accident, would you not? A. Yes.

Age is a great factor there. * * * There must be an ⁴²³ injury to the particular tissue in which the sarcoma develops. Q. That is, in order for the sarcoma to develop in the periosteum, the covering surrounding the hone, there must be an injury to that periosteum, or an injury to the bone? A. Yes, sir. Q. The injury must not only be to the covering surrounding the bone, but it must be right at the place where the sarcoma develops ?

A. Yes, sir. The sarcoma developed in probably the middle third of the thigh, right along the outside. I would not attempt to connect up an injury to the knee with a sarcoma in the middle third of the thigh. Of course, there are ligaments attached to the knee joint, with the possibility of the injury extending* up here (indicating the thigh), but in this particular case I know the sarcoma developed right at that particular place.” Then after repeating the hypothetical question, and his answer, counsel for the defendant inquired of the doctor as follows: “Bow, what particular fact in that question serves as the basis for your opinion of traumatism ?

A. The most particular fact which stands out there is the short duration by which it caused his death. Q. You had never treated this young man before he came to you at this time ? A. Bo, sir. Q. To determine the duration, you, of course, took his statement as to' the period of time?

A. Yes, I do' not know whether he said a week or two prior to that; I do not know now what time he left from the time he was injured until he consulted me in regard to his injury. Q. Tñat is the salient fact in that question, then, which enables yon to say the sarcoma was due to traumatism? A. Yes, sir; he said the injury was right there (indicating the thigh).” The further testimony of the doctor shows clearly that he understood the accident had occurred a week or two before Ambrose called on him, and lie was asked the question: “Bow, if time was essential in making and drawing the conclusion that the sarcoma resulted from an accident, any mistake as to the length of that time would, of course, affect your conclusions, would it not? A. Yes, sir.

Q. Tn other ⁴²⁴ words, if the young man, instead of coming to you a week after the accident, came three or four months after the accident, it would malte a big difference in your opinion, would it not? A. Undoubtedly, yes; it depends upon the severity of the injury. Q. So1 the answer you gave to Mr. Poe’s hypothetical question was also based upon your assumption that at the time you saw him he had been injured about a week before? A. About a week or ten days; yes, sir; I had no history of any previous injury.

He did not give me that. People are confined to bed many times for three or four days without having sarcoma. Q. Would it be possible for you to examine a man suffering from sarcoma, without any history of the case, and to determine from the condition of his bone and the cells what caused that sarcoma? A. Ho, sir.

Q, It would not? A. Ho, sir. Q. So without n history you could not say whether traumatism had anything to do with it? A. We customarily ask them, Have you been injured ?

Q. That is necessary in order to determine whether traumatism has anything to do with it ? A. Yes, it helps us in our diagnosis, and it has a bearing on the case.” It is manifest then that Dr. Manger was mistaken as to the facts and answered as he did because of that mistake, and he relied on what he assumed to be facts, which were not in the question. Although the hypothetical question assumed that the accident occurred on August 22nd, 1914, the doctor for some reason misunderstood or overlooked that, and said it would make a “big difference” in his opinion if Ambrose went to him three or four months, instead of a week, after the accident. The accident was in point of fact on the 22nd of August, instead of in Hovember.

Moreover, his cross-examination shows that he based his opinion on what he said Ambrose told him as to when and where the injury was, instead of upon what was in the question. There is apparently some confusion in the Record, as according to it, after the Court had overruled the motion to strike out the testimony of Dr. Manger, given in answer to ⁴²⁵ the hypothetical question, other testimony was given by him and then the Court asked if counsel desired to argue the motion. The attorney for the defendant replied that be did. The jury then retired and there was an argument on the motion.

What happened is thus shown by a certificate of the judge: “It is stipulated by counsel, and here certified to by the Court., that after motion, was duly made to strike out the testimony of Dr. Manger in answer to the hypothetical question propounded by the plaintiffs counsel, the Court reiterated its refusal to strike out its said answer, but, during tbe absence of tbe jury counsel for plaintiff agreed that the aforesaid answer of Dr. Manger should he stricken out. whereupon the Court said: ‘Then I will strike out the answer of Dr. Manger to the hypothetical question.’ That the aforesaid statement of the Court was made in the absence of the jury, and through inadvertence^ was not communicated to the jury upon their return to the Court room, nor at any other time. It is further certified that counsel for neither plaintiff nor defendant mentioned in the argument the aforesaid answer of Dr. Manger, and that each treated the answer as having been eliminated, and tbe fact that its elimination had not been communicated to tbe jury by tbe Court did not occur to either counsel until tbe jury had rendered its verdict.” It is contended on the part of the appellee that under the circumstances the first and