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Sourian v. Jones

OPINION FILED MAY 28, 1953

PAUL SOURIAN, HELEN ADAMS, AILEEN C. SCHULMAN, CHARLOTTE PENA AND BETTY BENTZ, PLAINTIFFS,

v.

ERNEST JONES, DEFENDANT. AILEEN C. SCHULMAN AND BETTY BENTZ, CERTAIN PLAINTIFFS-APPELLEES,

v.

ERNEST JONES, DEFENDANT-APPELLANT.



Appeal by defendant from the Superior Court of Cook county; the Hon. FRANK M. PADDEN, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1952. Judgments affirmed. Opinion filed May 28, 1953. Rehearing denied June 24, 1953. Released for publication June 24, 1953.

MR. PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 24, 1953

Plaintiffs Aileen C. Schulman and Betty Bentz instituted suits to recover damages for personal injuries resulting from a collision on February 19, 1950, between an automobile operated by defendant and an automobile driven by Paul Sourian in which the plaintiffs were riding. Trial by jury resulted in separate verdicts in favor of Aileen C. Schulman and Betty Bentz in the sums of $4,000 and $20,000, respectively, and judgments were entered accordingly. Defendant's motions for new trials denied. Defendant appealed.

These suits were consolidated in this court. In each case liability is admitted. The only question presented at the trial was the nature and extent of the damages sustained by plaintiffs.

Defendant's main contention is that plaintiffs' expert medical testimony is not sufficient to establish causal connections between the accident and the subsequent conditions complained of.

Testimony relating to the claim of Aileen C. Schulman is substantially as follows. Since birth she had a birthmark or mole about the "size of a dime" on the left lower part of her back near the spine. In the summer of 1949 she scratched the birthmark, causing it to bleed. After being thrown out of Sourian's automobile in the accident February 19, 1950, Miss Schulman went to Michael Reese Hospital in a taxicab accompanied by her sister Helen Adams who was also riding in the automobile at the time of the accident. At the hospital Miss Schulman was given some pills in the emergency ward but was not examined. As a result of the accident, she had bruises on both legs, her back and her hips and ached all over. On the day following the occurrence she visited a doctor who examined her, taped her back and gave her some pills to quiet her nerves. Thereafter she visited the same doctor three times within the following week. She was bandaged for about two weeks. At the time of the accident she was employed as a secretary at a monthly salary of $175. On the third day after the accident she returned to her employment but worked shorter hours until March 15 when she resigned. After her resignation she rested for about a week and then secured another position doing secretarial work at a weekly salary of $45. She remained at this position for about a year and a half.

About the end of March 1950 she observed that the birthmark on her back changed color from a dark brown to a lighter cocoa brown, increased in thickness and became "like a wart." About this time she called on her family's physician to get "hay fever shots" at which time she told the physician about the thickening of the birthmark. Her physician examined the birthmark on three different occasions over a period of about one month and found at each successive examination that the birthmark had grown "a little bit" and that a group of "little warts" had appeared. At the suggestion of her physician Miss Schulman consulted a skin specialist who removed the wart and sent some of the tissues to a laboratory for examination. The clinical examination disclosed a pigmented malignant tumor known as melanosareoma. Afterward, on August 15, 1950, Miss Schulman entered a hospital where she was operated on by Dr. Michael C. Govostis and another surgeon who removed a wide area of skin and underlying tissue. An examination in November 1950 revealed that the operation was successful and that the sear had completely healed.

In a hypothetical question propounded by plaintiff's counsel Dr. Govostis was asked whether he had an opinion to a reasonable degree of medical certainty, "whether the trauma or violence which I have described as having occurred on February 19, 1950, superadded to or in conjunction with the other symptoms and conditions which I have related to you in this question, was sufficient to cause the promotion of this melanosareoma." Dr. Govostis replied, "I believe so, and, if so, I would like to qualify my answer here." Continuing, the Doctor stated, "The reason I say it is, in certain cases these nevi or these benign melanomas, that if they are operated on inadequately or if they are stimulated by surgery or by any inflammation, that they become malignant subsequent to that."

Upon denial of defendant's motion to strike the foregoing testimony, Dr. Govostis further testified that, "It has been known over the ages that the tissues of birthmarks or tumors are more susceptible to becoming cancerous through repeated trauma. By trauma I mean bruising it, injury."

On cross-examination Dr. Govostis was asked whether in answering the hypothetical question he had taken into consideration the fact that the birthmark had been scratched and had bled in July or August 1949, six months before the accident. Dr. Govostis replied, "Yes, I believe that such an occurrence might or could have caused a melanosarcoma as that supposed injury on the occasion stated in the hypothetical question caused it. The scratching of a mole by a comb or fingernail or any other irritation a year before I saw this woman at the hospital might, with reasonable medical certainty, have caused a melanosarcoma as the occurrence to which my attention was directed in the hypothetical question."

On further cross-examination Dr. Govostis testified that it was not possible to make a complete statement as to what caused this mole or birthmark to develop into a melanosarcoma; that accidentally scratching such a mole with a fingernail, comb, or other substance "can stimulate it to become one. It could be the exciting cause."

Dr. Thomas C. Browning, a specialist in traumatic surgery called by defendant testified in substance, in response to hypothetical questions, that there could not have been any connection between the injuries such as were sustained by Miss Schulman in the accident on February 19, 1950 and the condition of her mole or birthmark discovered and developed after the accident.

As to the claim of Betty Bentz, the evidence discloses the following facts: At the time of the accident she was thirty-three years of age and employed as a clerk at a weekly salary of $42.50. In 1947 she went practically blind in her right eye and later recovered the use of her vision. About six months before the occurrence she started having difficulty in maintaining her equilibrium, she staggered and "kept going to the right." In November 1949 her condition worsened. She obtained a leave of absence from her employment and entered a hospital on January 2, 1950, where she was examined by Dr. Frederick Hiller who diagnosed her condition as multiple sclerosis. After treatment at the hospital she was discharged on January 20, 1950. At the suggestion of Dr. Hiller, Mrs. Bentz consulted a neighborhood physician who gave her injections every six days of neoarsphenamine. As a result of the collision she sustained bruises on her knees and lapsed into unconsciousness for about five minutes. About two weeks after the accident Mrs. Bentz called Dr. Hiller and told him about it. She was then having difficulty walking for the first time since her discharge from the hospital on January 20th. She also had trouble with her right hand. Dr. Hiller suggested that she re-enter the hospital, avoid emotional disturbances, and rest as much as possible. Instead she returned to work for a few days but had difficulty getting about and has not been engaged in gainful employment since.

Dr. Hiller testified in substance as follows: Multiple sclerosis is an organic disease of the nervous system the cause of which is unknown. It manifests itself in lesions in different places of the nervous system. It depends upon how often the lesions have occurred in a given area and how severe they have been whether the patient may recuperate. After many attacks paralysis results. Multiple sclerosis may be progressive in some cases. The record shows that on direct examination Dr. Hiller was asked the following question: "Doctor, in your opinion to a reasonable degree of medical certainty do you believe that the trauma of which you received the history ...


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