Alvillar v. Hatfield

484 P.2d 1275, 82 N.M. 565
CourtNew Mexico Court of Appeals
DecidedApril 23, 1971
Docket618
StatusPublished
Cited by17 cases

This text of 484 P.2d 1275 (Alvillar v. Hatfield) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alvillar v. Hatfield, 484 P.2d 1275, 82 N.M. 565 (N.M. Ct. App. 1971).

Opinion

OPINION

WOOD, Judge.

In this non-jury automobile accident case, defendants admitted liability to plaintiff “for injuries sustained.” Defendants’ appeal is directed to damage questions. They claim: (1) the doctor’s testimony should have been stricken; (2) the cause of plaintiff’s condition at the time of trial was not established; (3) the extent of an aggravation of a pre-existing condition was not proved; and (4) the damage award is not supported by substantial evidence and is excessive as a matter of law.

Medical testimony.

The only medical testimony offered at trial was that of a doctor called by plaintiff. The doctor testified that in connection with his examination of plaintiff he had the benefit of the reports of two other doctors and two x-ray reports. When the doctor started to testify about the x-ray reports, defendants’ objection was sustained. The doctor then related the complaints he had received from plaintiff and the objective findings from his examination. Subsequently, the doctor gave his “conclusion.” This, according to the doctor, was based “ * * * solely on my knowledge of Pete Alvillar as a patient since 1950.” The accident occurred in February, 1969. The doctor’s examination for purposes of trial was the day before the trial, which began May 26, 1970. The doctor testified he had treated plaintiff “about every three to six months” since 1950.

On his direct examination, the doctor testified that plaintiff’s condition at trial did not necessarily involve an arthritic condition but that was “one of the things” to be considered. On cross-examination he testified he couldn’t be sure, from his physical examination, that plaintiff’s present condition was osteo-arthritis or sprain. As to which of these two items, he relied on the x-ray reports. He stated that “part” of his conclusion was based on his acceptance of the x-ray reports as quoted in the reports of two other doctors.

Defendants moved “ * * * that the entire testimony of the Doctor be stricken. * * * ” They contend the trial court erred in failing to do so.

Plaintiff’s complaints to the doctor, and the history the doctor obtained from plaintiff, were admissible testimony. N. M.U.J.I. 15.2; Waldroop v. Driver-Miller Plumbing & Heating Corp, 61 N.M. 412, 301 P.2d 521 (1956). The doctor’s objective findings, based on his examination of plaintiff, were admissible testimony.

Defendants’ objection to the doctor’s testimony went to the answers, elicited on cross-examination, that the doctor’s conclusions were based “in part” on reports not in evidence. These answers did no more, however, than contradict direct examination testimony that the conclusions were based “solely” on the doctor’s knowledge of plaintiff. The fact that cross-examination answers indicated the doctor’s conclusions were based on inadmissible evidence, did not require that the conclusions on direct examination be stricken. Where, as here, there were contradictions in the testimony of the witness, the trial court was required to reconcile the contradictions and say which was the truth. Hughes v. Walker, 78 N.M. 63, 428 P.2d 37 (1967); compare Lucero v. Los Alamos Constructors, Inc, 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).

Since the doctor gave admissible testimony, the trial court properly refused to strike the doctor’s “entire testimony.”

The cause of plaintiffs present condition.

Defendants are only liable for the injuries they inflicted on plaintiff. Morris v. Rogers, 80 N.M. 389, 456 P.2d 863 (1969). We proceed on the basis that the cause of plaintiff’s condition, at the time of trial, was required to be established by medical testimony. See Martin v. Darwin, 77 N.M. 200, 420 P.2d 782 (1966); Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962).

Defendants contend all of the doctor’s testimony should have been stricken and, therefore, there is no medical evidence of causation. We have held that all of the doctor’s testimony could not have been properly stricken.

Defendants also contend there is no medical evidence of causation if consideration is limited to portions of the doctor’s testimony which was admissible. We disagree. The doctor gave his opinion that plaintiff’s condition at trial “came from” the automobile accident. This opinion was based on the history received from plaintiff and the “findings” when the doctor examined the plaintiff. The opinion was on the basis of a reasonable medical probability. This is substantial medical evidence of causation. Compare Morris v. Rogers, supra.

Aggravation of a pre-existing condition.

Morris v. Rogers, supra, states:

“ * * * Where the injury is an aggravation of a pre-existing condition, plaintiff must prove the extent of the aggravation because the aggravation is the injury that has been inflicted. * * * Further, the extent of the aggravation must be established with reasonable certainty. * * * ”

The doctor’s testimony, undisputed, is that plaintiff complained of pain in both of his arms in March, 1963, and that the doctor diagnosed this as a “very mild” arthritic condition. The doctor characterized this condition as “[v]ery slowly progressive.” The doctor wasn’t sure, from his physical examination, whether plaintiff’s condition at trial was osteo-arthritis or sprain. Nevertheless, his opinion was that plaintiff’s prior arthritic condition had been aggravated.

Defendants contend the extent of the aggravation was not proved. We disagree.

One of the ways of proving the extent of the aggravation is by comparative testimony. Morris v. Rogers, supra; Martin v. Darwin, supra. The doctor’s testimony shows the pre-existing condition to consist of complaints of pain in both arms diagnosed as a mild, slowly progressive arthritic condition.

Plaintiff’s present complaints were of “constant pain in his neck since the accident,” weakness of grip in the right arm with inability to lift things he formerly could, marked headaches “since the accident,” numbness in the right arm (only) “all the time,” and “at times” severe pain, and a “constant dizzy feeling.” These changes in the complaints are corroborated by non-medical witnesses. Compare Martin v. Darwin, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lopez v. Martinez
New Mexico Court of Appeals, 2014
Stetz v. Skaggs Drug Centers, Inc.
840 P.2d 612 (New Mexico Court of Appeals, 1992)
Lopez v. Smith's Management Corp.
744 P.2d 544 (New Mexico Court of Appeals, 1987)
Marcus Ex Rel. Estate of Marcus v. Cortese
649 P.2d 482 (New Mexico Court of Appeals, 1982)
Smith v. Trailways Bus System
628 P.2d 324 (New Mexico Court of Appeals, 1981)
Herrera v. Springer Corporation
546 P.2d 1202 (New Mexico Court of Appeals, 1976)
Martinez v. Knowlton
536 P.2d 1098 (New Mexico Court of Appeals, 1975)
Selgado v. Commercial Warehouse Company
526 P.2d 430 (New Mexico Court of Appeals, 1974)
Gurule v. Albuquerque-Bernalillo County Economic Opportunity Board
500 P.2d 1319 (New Mexico Court of Appeals, 1972)
Clem v. Bowman Lumber Company
495 P.2d 1106 (New Mexico Court of Appeals, 1972)
Elliott v. Taos Ski Valley, Inc.
494 P.2d 1392 (New Mexico Court of Appeals, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
484 P.2d 1275, 82 N.M. 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvillar-v-hatfield-nmctapp-1971.