Jerominski v. Fowler, Dick & Walker

105 A.2d 320, 377 Pa. 458, 1954 Pa. LEXIS 535

• Court: Supreme Court of Pennsylvania
• Decided: June 4, 1954
• Docket: Appeal, 74
• Status: Published

Opinions

Opinion by

Mr. Justice Chidsey,

The appellant instituted this action in trespass to recover for injuries which she alleged were sustained hy her on January 19, 1948 in the defendant’s department store. This is the second time the ease has been before us. See Jerominski v. Fowler, Dick & Walker, 372 Pa. 291, 93 A. 2d 433. At the first trial the court granted defendant’s motion for a compulsory nonsuit. The plaintiff appealed from the refusal of the court below to lift the nonsuit and we reversed with a procedendo, having decided that defendant’s negligence and plaintiff’s contributory negligence were questions of fact for the jury. At the second trial of the case the plaintiff recovered a verdict in the sum of $6,000. Upon the defendant’s motion the court en banc set aside the verdict and awarded the defendant a new trial. The plaintiff appeals from that order.

The facts show that the plaintiff on the above date went to the defendant’s store at about noon and took an elevator to the fourth floor. Not being able to purchase what she desired, she descended the stairway to the third floor. She testified that after she had proceeded down about four steps, her left foot went into something soft, causing her to fall to the bottom, a distance of some eighteen steps. First aid was administered at the store and she was sent home in a taxicab. A short time thereafter she discovered she was bleeding vaginally. Two years and three months after the accident she underwent two operations which necessitated the removal of her appendix, right ovary and right fallopian tube. It was primarily for injuries to these organs that plaintiff sought to recover, since the only other injuries alleged were external bruises.

We will not attempt to review at length the testimony of the several witnesses but will advert only to the evidence essential to the determination of the only question before us: Was the court below guilty of a palpable abuse of discretion in awarding a new trial? It is unnecessary to cite the many cases wherein we have held that the action of the court below in granting a new trial will not be reversed except for a palpable abuse of discretion.

The reasons assigned by the court in ordering a new trial were: (1) that the verdict was contrary to the weight of the credible testimony and obviously based upon sympathy for the plaintiff; (2) the court was of the opinion that her alleged condition was neither caused nor contributed to by her fall, and (3) the credible testimony established that plaintiff’s fall was not the result of defendant’s negligence.

It appears that even though the plaintiff voluntarily consulted eight doctors subsequent to her fall, she only called two of them to establish the relationship between her injuries and the fall. Chiefly, she relied on the testimony of Dr. Nicholas •-Mau'riello, a specialist in physical medicine, ’who'first 'treated the plaintiff some- two- years after the ¿ceideht- and was' 'the surgeon who performed the- operationsL He -was the only doctor-who would state that in Ms opinion- her condition - was due to ■ trauma*. ■ Th’e; other doctor-testL fying -on the plhihtiff’s -behalf,'- Dr.'-Deter Bosatko/first saw the plaintiff-' bn February: -lÓ,-:l-948y'áboñ-t'a -month after the accident. She complained at that time of pains in the lower abdominal region and of vaginal discharge. He found the presence of blood in her urine and referred her to Dr. Joseph Kocyan, an eminent gynecologist, who after an examination reported to Dr. Posatko that he was unable to find any pelvic pathology and that the plaintiff’s bleeding might have been the result of a ruptured graafian follicle. Dr. Posatko admitted on cross-examination that a graafian follicle is a minute formation on the ovary and a rupture thereof was a normal occurrence during the menstrual cycle.

Dr. Mauriello’s testimony in chief was largely discredited because on cross-examination he contradicted himself by subscribing to certain statements in a treatise by a distinguished authority in this field which were directly contrary to what he had testified. He also displayed a general evasiveness in answering questions.

The other doctors who treated the plaintiff following her accident were subpoenaed by the defendant. It is significant that of those who examined her in reference to abdominal pain none supplied any testimony favorable to plaintiff’s contention, and four of them testified that their examinations disclosed no evidence of any condition caused by trauma. Dr. Lachlan Cattanaeh testified that on April 15, 1937, more than ten years prior to the accident, the plaintiff was admitted as a patient in the Surgical Department of Wilkes-Barre General Hospital for a possible sub-acute appendectomy because she had been complaining of abdominal pain of two days’ duration. She was advised at that time to have a urogram made, which is an X-ray of the kidneys, urethra and bladder, because her urine examination indicated the presence of occasional red blood cells and pus. The urogram was never taken because the plaintiff’s mother signed a release and removed her from the hospital. Dr. Cattanach also examined her about a week after her fall but found no vaginal bleeding and could not say her condition resulted from the fall.

This history of a prior illness of substantially the same nature when considered in conjunction with the testimony of the payroll clerk and the industrial nurse at her principal place of employment prior to the accident, regarding her many absences from work and her eventual withdrawal therefrom because of ill health, cast very substantial doubt upon the contention that her condition was the result of the fall.

Dr. Mauriello’s testimony on which plaintiff was forced to rely, was characterized by indeñniteness, inconsistencies and ambiguity. As a medical expert he was called upon to give testimony concerning matters outside the domain of ordinary experience and knowledge in order to enlighten the jurors and aid them in their conclusions. As we read his testimony, rather than assist them, he enveloped them in a maze of medical terminology from which they could only emerge utterly confused. After scrutinizing the record with the utmost care, we feel that under all the circumstances the court had ample reason for aAvarding a new trial.

It appears from the record that the deposition of Che Hoyt, a going witness, was taken on January 28, 1949, pursuant to an order of court. It was admitted into evidence at the second trial of this case on March 17, 1953 over defendant’s objection that it should not be admitted without some showing by the plaintiff that the witness was still unavailable. It is axiomatic that the oral testimony of a witness in court is always preferred over a deposition which is merely secondary eAÚdence and not admissible unless it is proven that better evidence cannot be produced. It will be incumbent on the plaintiff at the next trial to show the unavailability of the witness or the exercise of due diligence on her part in attempting to locate her. See Mitsios v. Morios, 76 Pa. Superior Ct. 590; 5 Anderson Pa. Civil Practice 750.

The order granting a new trial is affirmed.