Lopresti v. Community Traction Co.

160 Ohio St. (N.S.) 480
CourtOhio Supreme Court
DecidedJanuary 20, 1954
DocketNo. 33530
StatusPublished

This text of 160 Ohio St. (N.S.) 480 (Lopresti v. Community Traction Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopresti v. Community Traction Co., 160 Ohio St. (N.S.) 480 (Ohio 1954).

Opinion

Hart, J.

Although both actions were tried together to the same jury and the record is a combination of records of both actions, because of differences in the issues involved and because of the nature of the claimed errors in the trial, this court must necessarily separately review parts of the record as they relate to each action.

In the petitions in both the survival and wrongful death actions, the plaintiff alleges negligence of the defendant, and at the trial such negligence was admitted by the defendant. In the survival action, the petition alleges that Lopresti “sustained an inguinal hernia on the left side, and a strain and sprain of the spine * * * and also sustained internal injuries which produced a traumatic malignancy in the thoracic and lumbar region. ’ ’

The answer of the defendant to such petition admits “that as a result of the collision plaintiff sustained personal injuries, but denies that said injuries were of the kind or extent alleged in plaintiff’s petition.”

In its special combined verdict, the jury found as facts that “Lopresti was forcibly thrown against the steering wheel of his car bending and damaging the same”; that he “sustained a left inguinal hernia and internal abdominal injuries as a direct result of said collision”; and that the “injuries and trauma so sustained by * * # Lopresti activated a carcinoma of the head of his pancreas and proximatély shortened his life and accelerated his death.”

At the close of all the evidence, the defendant made a motion for a directed verdict in the wrongful death action, which motion was overruled. No such motion was made in the survival action. As to such action the principal assignments of error are insufficiency of the evidence, excessive damages, error in the general charge of the court, refusal of the court to charge as requested by the defendant at the conclusion of all [484]*484the evidence, and error in the admission in evidence of certain exhibits offered by the plaintiff.

The jury found that Lopresti sustained multiple personal injuries as a result of the collision, and we are of the opinion that this finding, as it relates to the survival action, is fully supported by the evidence.

On the other hand, this court is of the opinion that there is no substantial evidence in the record to support the verdict in favor of the plaintiff in relation to the wrongful death action. There was no proof whatever that the injuries suffered by the decedent caused his cancer. In order to warrant a recovery in that action, it was necessary for the plaintiff to prove that the injuries activated the decedent’s cancer to the extent that it accelerated his death by some appreciable period of time.

Section 10509-167, General Code (Section 2125.02, Revised Code), limits recovery in a wrongful death action to such damages as. the jury may find proportioned to the pecuniary injuries resulting from such death to the person or persons for whose benefit the action is brought. Karr, Admr., v. Sixt, 146 Ohio St., 527, 534, 67 N. E. (2d), 331, paragraph six of the syllabus. The basis of recovery in such a case must be predicated upon the loss which the beneficiary suffers by reason of the decedent’s wrongful death, the damages must be measured by the monetary value of the period of time his life was shortened by reason of the injury, and the evidence must show that such period was a reasonably appreciable one.

The crucial question in the instant case is whether there is any evidence to sustain the finding of the jury in this respect. This is a highly technical and scientific problem and must be resolved in this case upon the testimony of three physicians and surgeons called as witnesses in-the case, one for the plaintiff and two for the defendant.

[485]*485Dr. Gaspari, called as a witness by the plaintiff, testified in substance that on July 13, 1949, he assisted in an abdominal exploratory operation on Lopresti and found a bulging hemorrhagic mass which he diagnosed as a malignancy, but a pathological examination did not confirm the malignancy; that no further operation seemed advisable as it was apparent that the patient was fatally ill; that he died on September 8, 1949; that an autopsy showed cancer of the head of the pancreas as the cause of death; and that as to whether the injury shortened Lopresti’s life the doctor thought “that the trauma aggravated this man’s condition.” He testified further that he believed the “injury played some part in this, but the amount it played, I cannot say * * * I wouldn’t know that.” He testified that the primary cause of death was cancer of the pancreas. When asked whether Lopresti had an existing malignancy at the time of his accident, he answered, “I would say that he had it * * * I think he had it for some time * * * I don’t know the cause of cancer * * * I don’t know anyone that knows the cause of cancer.” Upon further inquiry whether it takes an accident to make malignancy cells active he answered, “no it doesn’t take an accident * * * it may be anything * * * we don’t know.”

Dr. Gaspari signed the death certificate at the time of Lopresti’s death and stated that the “disease or condition directly leading to death” was “undifferentiated carcinoma of head of pancreas.” An inquiry on the death certificate as to injury or accident was left unanswered.

Dr. W. W. Beck, called by the defendant, in answer to hypothetical questions, said:

“A. * * * there is no causal relation between any of the physical trauma received and the adenoma carcinoma of the head of the pancreas.

[486]*486“Q. Do you know wliat causes cancer? A. No, no one does.

í t * # *

“A. My opinion would be that there would be no relation between the trauma received and the cancer, or any activating or aggravating the cancer of the pancreas.

it* * *

“Q. Well, in your experience with treatment and handling of pancreatic cancers, have you ever known of one where trauma, or injury, either caused or accelerated the growth of the pancreatic cancer? .* * * A. I have never known a case.

í t * * *

“Q. You don’t think trauma has anything to do with cancer? A. No, I don’t think so. 1 believe the best authorities agree with that.”

Dr. Howard Holmes, also called by the defendant, in answer to hypothetical questions, said:

“A. Cancer of the pancreas, as I previously stated, the time of its start, its cause no one knows. Certainly with the facts cited here, I can see no relationship whatsoever to the automobile accident he had with the ultimate finding of cancer of the pancreas.

tí***

“A. * * * in all the years, we have never seen cancer of the pancreas develop following trauma.

í Í * * *

“A. * * * I have never seen or heard, or ever read of any instance where trauma activated a cancer.

tí* * *

“A. My opinion is that the accident had nothing to do with acceleration, or agitation of the cancer of the pancreas.

“Q. Now, Doctor, you recognize trauma as a factor in the growth of cancer? A. No, sir.”

[487]*487Taking this medical testimony as bearing on the wrongful death action in a light most favorable to the plaintiff, this court finds that there is no substantial evidence that the injury to the decedent shortened his life for any appreciable period of time.

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Related

State v. DeZeler
41 N.W.2d 313 (Supreme Court of Minnesota, 1950)
Karr, Admr. v. Sixt
67 N.E.2d 331 (Ohio Supreme Court, 1946)

Cite This Page — Counsel Stack

Bluebook (online)
160 Ohio St. (N.S.) 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopresti-v-community-traction-co-ohio-1954.