Baker v. DeRosa
Baker v. DeRosa
Opinion of the Court
Opinion by
On October 4, 1958, Jerome A. Baker’s automobile, with him in it, was struck in the rear by the car of Biagio DeRosa. On December 11, 1958, he died. Verna Baker, administratrix of his estate, brought suit against DeRosa, claiming that her husband’s death was caused by the injuries he received when the cars collided, the injuries having brought about or aggravated a bronchogenic malignant condition. The jury returned a verdict in the sum of $10,000 and the defendant seeks a new trial, alleging failure of proof in the plaintiff’s case, plus alleged trial error.
The defendant contends that Baker died of a cancerous condition in no way related to the accident of October 4, 1958. Two doctors called by the defendant so testified. Since the jury found for the plaintiff, the appellant admits that there would be no purpose in discussing the defendant’s doctors’ testimony.
The decedent’s family physician, Dr. Broocker, testified that Baker was in good physical condition prior to the accident, that he had visited him on August 25, 1958, for a “check-up” and the examination showed him to be in “good health.”
Dr. Broocker called at the home of Baker on October 6, 1958, and the patient related that he had been in an automobile accident, that his car had been struck violently from the rear and he had been thrown against the steering wheel, that his head snapped back and forth, he felt a wrenching, and he “saw stars.” The doctor testified that his examination on October 6th revealed: “contusions of the chest wall, discoloration here (indicating), muscle spasm of the neck and low back, recorded here as cervical and lumbar areas. I recorded a blood pressure of 142-90, and I diagnosed a post-concussion syndrome.”
He was questioned further: “Q. What is your opinion? A. I felt that the violent effect of being thrust into the steering wheel, that the violent effect of the chest being struck hard against the steering wheel set into motion whatever occurred. I mean, the fact that the man was in good health reasonably close to the time of the accident and then became sick immediately after the accident, my opinion is that the accident caused the circumstances that I found. By Mr. KlovSky : Q. Later on you learned and were advised, and from your own observation of what you saw, that there was a diagnosis of bronchogenic carcinoma, is that correct? A. Yes. Q. Based upon everything that you saw, based upon your observation of the patient, do you have an opinion as to whether this bronchogenic carcinoma was in any way aggravated, actuated, or precipitated by the accident of October 4, 1958? ... A. My opinion is that the accident aggravated this carcinoma, causing the premature death of this man. Q. What is the basis of your opinion? A. The fact that the man was in good health immediately prior to the accident, became sick immediately after, and his course was steadily downward until he passed on. He coughed up blood right after the accident. If there had been something in his chest prior to that time, it was certainly stirred up very violently by the accident.”
He said further: “. . . I believe that the impact of trauma was a significant and a substantial factor that accelerated and aggravated and perhaps precipitated the rapid downhill course of this patient. But I would not wish to have stated that this in any way actually caused his death, because the cancer was what caused his death. The trauma itself speeded up or activated or accelerated the actual malignant process.”
The defendant attacks Dr. Moss’s conclusions because at one point in the cross-examination he said: “We are not dealing in the area of certainty. Therefore, we have to think in terms of probability.”
But it is particularly to be noted in what manner he employed the word “probability”. He explained: “When you have proof of something, you have a hundred per cent. But if you take a rifle, as I started to say, and you aim at a target and you hit it ninety-nine out of a hundred times, you don’t have the proof. You only missed it by one; nevertheless, this is probability. That is what I’m talking about.”
The question as to whether the injury sustained by the decedent on October 4, 1958, was the proximate cause of his death, through the activation of cancer or acceleration of an existing one, was strictly a question of fact' for the jury and it was so properly submitted to the jury by the trial judge.
At the time of the oral argument before this Court, the appellant’s counsel contended vigorously that there is no scientific support for the proposition that trauma can cause or worsen a latent cancer. But this was counsel’s own personal view based on what the defendant’s doctors stated, which, as we have seen, was not accepted by the jury.
Defendant’s counsel attacks the credibility of Dr. Broocker on several points, none of which seems very weighty. He calls attention to a card kept by the doctor in his office and on which he recorded visits made by the decedent, as well as other pertinent data. It appears that Baker first visited Dr. Broocker on March 6, 1949, at which time the doctor made up the record card which he kept ever since, entering appropriate data from time to time. The doctor wrote on the card, “Su 9-5957” as the decedent’s telephone number. Employees of the telephone company testified that that number was not used by the telephone company until one year subsequent to March 6, 1949. The appellant argues for the inference that the card was manufactured evidence and that, in pre-dating March 6, 1949 the doctor made the error of writing a number which he could not have known until later. This is tenuous logic. There are many explanations for an error in re
The number could easily have been added after March 15, 1950, when Su 9-5957 did become the decedent’s correct number. Defendant’s counsel did not ask at the trial any question to exclude this natural explanation. All that defendant’s counsel asked was: “And I presume that you made up the card on March 6, 1949?” The doctor answered “Yes,” but he did not say that he entered the telephone number on March 6, 1949. Nor did appellant’s counsel ask him when the number was entered.
The appellant argues further that the notes appear on the doctor’s card are incomplete and sketchy. The lower court answered this argument satisfactorily, when it said: “. . . There is nothing abnormal, as suggested by the defendant, about the way in which they are written. They record a history of treatment over a number of years leading up to and following the accident involved in this case. . . .
“. . . We deem this to be a very insignificant matter and one which does not require any discussion to realize that a physician’s summary report may not include mention of every visit or of every treatment rendered by the physician. Furthermore, the witness was cross-examined on this point and his explanation was entirely credible and satisfactory. Moreover, the matter was submitted to the jury for their consideration as to weight and credibility.”
A more serious matter is raised by the appellant when attention is called to the fact that in a report
The form was not signed by the decedent, nor did he write in any answer to the query: “Does the foregoing information constitute the entire claim resulting from this accident?”
The date appearing on the form is “9-6-58.” September 6th is obviously incorrect because it is admitted by everyone that the accident happened on October 4, 1958. The mistake made by the decedent in this regard is one of the most common chronological errata of mankind. Whether the explanation is that man only ■reluctantly gives up the passing of time and subconsciously likes to hold on to it by still using the previous month’s or year’s date, or whether habit is often stronger than consciousness, and thus a frequently repeated month or year continues to be repeated, cannot be said with certainty, but it is rather self-evident that although one may err as to month or year, he invariably uses the correct day. This explanation is made here because appellant’s counsel argues that the decedent’s claim sheet was actually written out on October 9th. He reasons in this manner: The decedent wrote out, as indicated above, that he traded in his car for a new one. Counsel asked Mrs. Baker: “Isn’t it a fact that your husband traded the car involved in the accident in on the Wednesday following the accident?” And she answered: “That’s right.” This would have made the transfer date October 8th, but, in a procrustean at
The realities easily add up to the conclusion that the claim was made, as the decedent stated, on the 6th, thus only two days after the accident and not 5 days as argued for by the claimant. This brings us back to the question as to why the decedent said on the 6th (not the 9th) that he had not been injured.
His wife explained that when he made out the report “he did not think he was injured.” This coincides with the realism of the situation. On the 6th Baker went to work and apparently sometime during the day filled out the controverted claim. That evening, however, when he returned home he was ill. His wife testified to seeing dark spots across his chest and that he was expectorating blood. She called the doctor and he came that evening.
The medical books would undergo considerable thinning if there were removed from them all the cases of persons who were hurt but did not realize the full extent of their injuries at the time of the untoward happening, the disabling symptoms having been delayed because of the rugged constitution of the patient or because of the naturally retarding effect of the disabling agent. The jury was warranted in finding, from the facts, and the natural rationalization from the facts, that Baker sustained violence to his chest on the 4th but that it was not until the evening of the 6th that he realized he had been seriously injured.
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion by
Plaintiff’s case is so farfetched and so filled with contradictions by the decedent and conjectures by his doctors, while the testimony of defendant’s doctors is so positive and strong, I believe that the verdict was clearly against the weight of the evidence and that a new trial should be granted in the interest of justice.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.