Willoughby v. Zylstra

WILLIS, J., pro tem. Plaintiffs, respondents herein, joined in an action for damages for personal injuries suffered as a result of a collision between the automobile in which they were riding and one belonging to the appellant City of Signal Hill, a municipal corporation, and operated [300]at the time of such collision by appellant Harry Zylstra, an employee of said municipal corporation, during the course of his employment and work of oiling streets of the city. The cause was tried before the court with a jury, and by separate verdicts each plaintiff was awarded damages in the sum of $5,000. No question of responsibility among the individuals participating in the collision is raised herein, the jury’s implied findings in that respect being recognized as conclusive on this appeal; but appellants contend that certain rulings of the court on admission of evidence are prejudicially erroneous, that the damages awarded are excessive, that counsel for respondents was guilty of prejudicial misconduct in his closing argument and that the appellant City of Signal Hill is not liable for acts of negli-. genee of its' servant done in the performance of duties which are governmental in their nature.

Respondents called as an expert medical witness a physician who, after being qualified as an expert, related the statements made to him by respondent Ruby Arnett during an examination he made of her during the progress of the trial for the purpose of forming and giving an opinion, as an expert witness, as to her physical condition. Counsel for appellants repeatedly objected to admission of such statements on the ground that they were hearsay, such objections being addressed to all the statements made by such respondent. The statements embraced complaints of present pain and suffering, including those showing present subjective symptoms, and the history of her injuries, including some history of past suffering and miseries. On the trial of cases for damages for personal injuries complaints by the injured party of present pain and suffering are admissible on proper, foundation as evidence through the medium of either medical or lay witnesses. (Bloomberg v. Laventhal, 179 Cal. 616 [178 Pac. 496]; Kimball v. Northern Electric Co., 159 Cal. 225, 231 [113 Pac. 156].) Declarations and statements, made to an examining expert by an injured party, of previous condition and past suffering, when declared by the expert to be necessary to enable him to form an opinion as to the nature and extent of disease or injury, and when such statements constitute in part the basis upon which the opinion of the expert is based, are admissible, not for the purpose of establishing the truth of the state