Lang v. Monger

195 S.E.2d 347, 17 N.C. App. 724, 1973 N.C. App. LEXIS 1454

• Court: Court of Appeals of North Carolina
• Decided: March 28, 1973
• Docket: No. 7312DC22
• Status: Published

Opinion

CAMPBELL, Judge.

Defendant assigned as error a great portion of the testimony of plaintiff’s expert medical witness, Dr. Baluss. Dr. Baluss testified that in his opinion plaintiff was suffering pain when he first examined her on September 16, 1969. We find no error in this testimony.

Subsequently, the following transpired:

“Q. Dr. Baluss, based on your examination and treatment of Mrs. Lang from the first time she saw you in September, 1969, through 1972, do you have an opinion satisfactory to yourself as to a medical certainty whether or not the condition for which you were treating her is permanent and whether or not those conditions were, in fact, caused by an automobile accident on August 25, 1969 ?

Objection by Attorney McLeod.

Court: Overruled.

A. Yes, sir.

Motion to strike by Attorney McLeod.

Court: Denied.

Q. What is your opinion?

Objection by Attorney McLeod.

Court: Overruled.

A. I thought or my belief is that she had a measure of lasting disability as a result of the accident described in August of 1969.

Motion to strike by Attorney McLeod.

Court: Motion denied.”

We are of the opinion that this evidence was incompetent and that it was error to overrule the objection thereto.

Dr. Baluss had no personal knowledge that plaintiff was involved in an automobile accident on August 25, 1969, or if she was, that she sustained any injuries in the accident. Yet he stated to the jury as a fact that in the accident, in suit, plaintiff had sustained a measure of lasting disability. This constituted error for the same reason set out so clearly by Justice Sharp in Todd v. Watts, 269 N.C. 417, 152 S.E. 2d 448 (1967). No useful purpose would be accomplished by repeating the words of Justice Sharp.

New trial.

Judges Britt and Graham concur.