William Leahy, Respondent, v. Gaylord and Eitapenc Company, Appellant

William Leahy, Respondent, v. Gaylord and Eitapeno Company, Appellant. Third Department, January 9, 1907. Evidence—opinion as to permanency of injury not based on facts. Medical experts should not be' allowed to express an opinion as to the permanence of an injury when the opinion is not based on facts submitted to the jury, but is pure conjecture. ■. Such opinion cannot be based on the testimony of the plaintiff, as the opinion determines the effect of his evidence. - ■ ' If or can the opinion be based upon the fact that the witnesses dressed the plaintiff's head after the accident and found a fissure in or fracture of the'skull, the extent of which they did not investigate, and that shortly before the trial they found . a scar and slight depression. , , ■ When the verdict shows that the plaintiff was awarded damages for a permanent .injury instead of for the loss of a few days’ time it is evident that such expert testimony was prejudicial, anda judgment for the plaintiff should he reversed. Appeal by the defendant, Gaylord and Eitapeno Company, from .a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of" Broome on the. 5tli day of February, 1906, upon the verdict of a jury for $1,467, and also from so much of an order entered in said clerk’s office on the" 5th day of February, 1906, as denies the defendant’s motion for a new trial made upon the minutes. Maurice E. Page, for the appellant. James F. Loughlin, for the respondent, [MAJORITY — Kellogg, J.:] Kellogg, J.: The plaintiff was injured by an iron pipe falling on his head, and the verdict establishes that the negligence of the. defendant’s employees caused the injury. The plaintiff swears that since the injury he is nervous, at times is dizzy, is irritable, and suffers' pain in his side and in his head, and that his memory is defective. His evidence upon the trial- tended to show that lie had a good memory. There is nothing except the evidence' of himself and wife to indicate that he is now suffering from any cause. He received a verdict for $1,467. To prove that the injuries were permanent he calléd two physicians who treated him. Their evidence tends to show that they first saw him a month or so after the accident, and that then there was a running sore upon his head. They opened up the scalp and discovered, one says, a fissure in the skull, the depth and details of which lie did not investigate; the other speaks of it as a fracture, the depth and details of which he did not thoroughly examine. They scraped the bone and cleansed and dressed the wound. The wound healed, but there is apparently a slight depression and scar at the spot where the injury was. There are no other physical indications of the injury. These physicians were permitted to testify, from all their treatment and examination of the plaintiff and their examination of him the day before the trial, that it was reasonably certain that his injuries will be permanent. This class of evidence was objected to upon the ground that it was immaterial, incompetent, irrelevant, no proper foundation- laid and assuming' facts not proved, which objection was overruled. The physicians had stated no facts about the examination the day before the trial, except that they made it for the purpose of ascertaining the plaintiff’s condition. They had stated to the jury no fact tending to' show that the plaintiff had sustained any permanent injury. They were permitted to express an opinion without stating to the jury any fact upon which' it was based. If we assume that their evidence was based upon the facts sworn to by plaintiff, then they determined the effect of the plaintiff’s evidence and what facts it established. The evidence was clearly inadmissible. (Davis v. Maxwell, 108 App. Div. 128, 133.) The mischief of such evidence is emphasized by the further examination of the physicians, which shows clearly that their evidence as to the permanency of the injury is based entirely upon conjecture and is a mere statement of possibilities. (Briggs v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 59.) Two days after the injury the plaintiff returned to his work and worked overtime for several days, and continued upon the work until the job was finished, and he has performed about the samé amount of work since the injury as before. He is a skilled plasterer, engaged in doing finishing work, and is not continually employed, but works from job to job as occasion permits. The defendant contended that the plaintiff had suffered no permanent injury, and had lost only a few days’ time. The substantial vérdict shows that the jury must have allowed for a continuing injury, 'one. more or less permanent. The evidence of the physicians was, therefore, prejudicial, and without it the evidence does not fairly sustain the conclusion that the plaintiff, suffered, a permanent injury. The judgment .should, -therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. ■ All concurred; Parker, P- <P, not voting, not being a member of this court at the time this decision was handed down. Judgment and. order reversed and hew trial granted1, with costs to appellant to abide event.