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Birkes v. Wade

July 6, 1973


Appeal from Circuit Court, Jackson County. Loren L. Sawyer, Judge.

Robert C. Robertson, Medford, argued the cause for appellant. With him on the brief were Van Dyke, DuBay, Robertson & Paulson, P.C., Medford.

Allan B. deSchweinitz, Medford, argued the cause for respondent. With him on the brief were Haviland, deSchweinitz and Stark, Medford.

In Banc. Tongue, J.


This is an action for damages for personal injuries sustained by plaintiff in a fall at defendant's motel. The jury returned a verdict in favor of plaintiff for $46,975 in general damages and $28,770.85 in special damages. Defendant then filed a motion for entry of a judgment n.o.v., or, in the alternative, for a new trial, based upon various alleged errors. The trial court entered an order setting aside the jury verdict and granting a new trial. Plaintiff appeals from that order.

In granting a new trial the trial judge rejected all of defendant's claims of error except for the contention that the court erred in not granting defendant's motion to withdraw from the complaint the allegation

that the various injuries sustained by plaintiff as a result of that fall included:

"Traumatic aggravation of preexisting latent conditions of Muscular Dystrophy causing it to become symptomatic."

The basis for this holding by the trial court, as stated in the order as entered by it, is as follows:

"* * * The only evidence in support of this allegation was the testimony of Dr. Luce. The Court has reexamined the testimony of Dr. Luce and feels that his opinion in support of that allegation was based upon incomplete history. It is pointed out by the cross examination by defendant's counsel, had he known of the history given Dr. Boe that the plaintiff had in fact not had polio, which was testified to by his mother, and had he known of the other falls which the evidence disclosed, that his opinion would have been different. * * *"

1. Summary of testimony re Muscular Dystrophy

A lengthy review of the testimony in this six-day trial would serve no useful purpose, except for testimony relating to this single issue. In reviewing the record for this purpose it must be remembered that plaintiff is entitled to the benefit of all favorable evidence and to all favorable inferences from that evidence. Accordingly, we do not undertake to mention all of the unfavorable testimony in this record.

a. Testimony of plaintiff and his wife.

On the night of December 30, 1964, plaintiff, a truck driver on a trip to California, stopped his truck at defendant's motel, where he slipped and fell, striking his lower back, elbows and hands and knocking himself unconscious, according to his testimony. Plaintiff testified that prior to the accident he had been in

good health and had engaged in horseback riding, golf, fishing and hunting, as well as in his work as a truck driver, and that:

"[t]o my knowledge I had no problems with my muscles."

He also testified that he had not noticed that any of his muscles had been growing smaller year by year and that:

"* * * my left bicep has always been slightly smaller than my right bicep. As far as that portion of my anatomy, I'm right-handed. I never failed to do any type of work with my arms. And it didn't bother me at all. And I didn't, by reason of being right-handed, it being slightly smaller I thought was just something natural."

but that since the accident:

"* * * My entire muscle system has diminished along with my weight entirely."

Plaintiff also testified that in July 1963, prior to the accident, he consulted Dr. Boe because of a kidney infection, but that "other than this urinary problem" he had no problems "of a physical nature" between July 1963, and December 30, 1964.

Plaintiff further testified that shortly after his fall on that date he went to a hospital in Ashland, but that no doctor was on duty there at that time; that after a nurse gave him some pain pills he completed his trip to California and his return trip to Oregon with his truck. He then consulted Dr. Hansen, his family physician, who referred him to Dr. Cohen, an orthopedic surgeon, who first examined plaintiff on March 6, 1965.

Plaintiff was able to continue his work of truck driving until sometime in 1967, although testifying that because he had a wife and child to support he "was

obliged to work," but did so "against doctor's orders" and with medication for pain. Beginning seven or eight months after his fall at defendant's motel, according to plaintiff's wife, plaintiff started to occasionally fall on his knees. In August 1966, he also fell from the top of a truck, landing on his left side. In April 1972, he was knocked down by his wife's car when she forgot to set the parking brake, causing an abrasion on one knee and a bruise on one foot. For some time prior to trial plaintiff was unable to get around without crutches, according to what he told his doctor.

b. Testimony of Dr. Boe.

Dr. Boe testified that when he was consulted by plaintiff in July 1963, plaintiff "wanted a complete physical" and complained of "morning discharge, and a feeling of weakness and lifelessness for the past six months." Among "other complaints" by plaintiff, according to Dr. Boe, was that "his legs were numb if he crossed them and left them crossed too long; his fingers became numb." He also complained of sharp pains in the small of his back and pelvis. Upon giving plaintiff such an examination he found, among other things, that "the left upper arm was atrophied, there was very little muscle left in that area of the left upper arm," but that he noticed no atrophy of any of the other muscles of the arms or legs.

After completing his examination Dr. Boe found plaintiff was in "good health except for some irritation of the bladder outlet." Dr. Boe was of the opinion that numbness in the legs after crossing them for some time is "a normal condition" for persons of plaintiff's size and weight; that the pains in ...

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