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10 F.(20) 277 It follows that the order appealed from poisonous gases, was not supported by profesmust be reversed and set aside, and the case

sional reasons for conclusion, nor theory as to

how or why results could follow, held that his remanded for further proceedings not incon- testimony constituted at best only that scintilla sistent with this opinion.

of proof not justifying submission to jury of Reversed and remanded.

question whether plaintiff's condition of health was caused by his inhalation of mine gas.


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In Error to the District Court of the United States for the Eastern District of

Kentucky; Andrew M. J. Cochran, Judge. HARDY-BURLINGHAM MINING CO. v.

Action by R. H. Baker against the HarBAKER.

dy-Burlingham Mining Company. Judg(Circuit Court of Appeals, Sixth Circuit.

ment for plaintiff and defendant brings erFebruary 5, 1926.)

Reversed and remanded for new trial. No. 4300.

Frank V. Benton, of Newport, Ky., and 1. Trial 139(1)-Scintilla of proof does not B. R. Jouett, of Winchester, Ky., for plainjustify submission to jury.

tiff in error. In federal courts, a mere scintilla of proof 0. H. Pollard, of Jackson, Ky. (T. T. does not justify submission of issue to the jury, Cope, of Jackson, Ky., and C. S. Landrum, but proof must have appreciable and reasonable of Lexington, Ky., on the brief), for defendsubstance.

ant in error. 2. Evidence 14, 571 (9)-Common knowledge

Before DENISON, DONAHUE, and that "nervous wreck" cases develop without known physical cause, and claim must be bas- MOORMAN, Circuit Judges. ed on definite and competent expert proof.

It is common knowledge that many of the DENISON, Circuit Judge. In the court cases of "pervous wreck" develop without any below Baker. recovered against the Mining known specific physical cause; hence a claim that such result followed known and specific Company a judgment based on a personal physical or functional upset must have definite injury. At the time of the trial he appeared and competent expert proof, which shall at least to be, and, giving due effect to the verdict, it show fair and reasonable probability of cause must be assumed that he in truth was in the and effect relation,

condition which is concisely indicated by the 3. Appeal and error w926(7)-Circuit Court term "nervous wreck.” He charged this re

of Appeals will assume physician sufficiently sult to his experience in the first half hour qualified as expert, where no objection was

of the first and only day that he worked in made.

the defendant's coal mine. It is his theory Circuit Court of Appeals will assume that a physician was sufficiently qualified as

that he then inhaled a "poisonous gas,” which pert, where no objection was made, although defendant was negligently permitting to exthe mere fact that he was practicing as physi- ist at the place where he was put to work, cian might not be enough.

and that his final condition was the proxi4. Evidence Ow555–Opinion based on subjec- mate result of this negligence.

tive symptoms stated to doctor to qualify The only question for review is whether him to testify cannot be received.

there was in the evidence the necessary legal Expert opinion of doctor based in material basis to support each of the three conclupart on statements by plaintiff of the subject sions: (1) That plaintiff did inhale gas at tive symptoms from exposure up to time of statement, for the purpose of qualifying doc- this time and place; (2) that its presence imtor to testify, cannot be received.

plied defendant's negligence, and (3) that

there was due causal relation between this in5. Evidence 555–Opinion based on subjec. halation and his later serious illness. We

tive symptoms stated to physician to get treatment and cure are admissible.

pass by, as needing no separate consideraOpinion of physician, based on subjective tion, the fourth question, whether he was at symptoms stated to him to get treatment and and before the trial really sick, or only malcure would be admissible in evidence.

ingering 6. Damages On 208(2)-Doctor's testimony [1] Appellate courts are constantly deciding

presenting no professional reasons for con- whether, in a given case, there was or was not clusion held to constitute only scintilla of “substantial evidence" to a given effect. Usproof, not justifying submission to jury of ually it is enough to decide this concrete question whether plaintiff's condition of health was caused by injury.

question, and no more. Occasionally it is Where doctor's testimony as to injury to worth while for a court to review the fundamine employé being caused by inhalation of mental definition, and recall how it has been

an ex


discussed and fixed by the decisions controllo say that there is no evidence to go to the ing that court. This seems an appropriate jury we do not mean that there is literally occasion for some consideration of this kind, none, but that there is none which ought reabecause the proper application to this record sonably to satisfy a jury that the fact to be of the "substantial evidence” test depends proved is established.” upon some precision of understanding as to Many English and federal cases are rewhat the test is.

viewed, and he concludes: The rule prevailing in some jurisdictions "If evidence be of so slight a character as that any evidence having any legal tendency to come within a reasonable definition of the to prove the point, is enough to require the scintilla rule, it is the duty of the court to dicourt to submit that point to the jury was, rect a verdict, or, if it has submitted the mat50 years ago, denied by the Supreme Court ter to the jury, to set aside a verdict having no in Commissioners v. Clark, 94 U. S. 278, 284, other support than a mere scintilla. In all 24 L. Ed. 59, where the "scintilla” rule is such cases the evidence is insufficient in law.” expressly disapproved. That court has at There is, further (page 475), recognition different times defined the degree of proof of the rule that "evidence may be so insufinvolved as: That from which the jury ficient in fact as to be insufficient in law." might "justifiably find" a verdict, or "come The further conclusion is that there may be fairly and reasonably to the conclusion” such insufficiency in fact in plaintiff's evi(Pleasants v. Fant, 22 Wall. [89 U. S.] 116, dence as to make it clear that the verdict for 122, 22 L. Ed. 780); that upon which the jury plaintiff ought to be set aside and yet not can "properly proceed" (Commissioners v. such insufficiency in law as to justify refusClark, supra); "evidence that would justify” ing to submit. In Felton v. Spiro (C. C. A. (Carter v. Corusi, 5 S. Ct. 281, 285, 112 U. 6) 78 F. 576, 24 C. C. A. 321, the same rule is S. 478, 484 [28 L. Ed. 820]); that from again applied in an opinion by Judge Taft; which the conclusion “can be reasonably and and again by Justice Harlan for this court legitimately inferred” (Randall v. B. & O. R. in Travelers' Co. v. Randolph, 78 F. 754, 759, R. Co., 3 S. Ct. 322, 323, 109 U. S. 478, 482 24 C. C. A. 305; he suggests another formula [27 L. Ed. 1003]); that from which "a · for the power to direct, “when the evidence is reasonable inference can be drawn” (Smith so distinctly all one way that a different view v. U. S., 14 S. Ct. 234, 235, 151 U. S. 50, 55 of it would shock the judicial mind”; and (38 L. Ed. 67]); "some evidence,

again the subject was discussed for this but so meager as not in law to justify a ver- court by Judge Severens in Minahan dict” (Sparf v. U. S., 15 S. Ct. 273, 292, 156 Grand Trunk Ry., 138 F. 37, 70 C. C. A. 463. U. S. 51, 100 [39 L. Ed. 343]); "is of such He said: a conclusive character that the court

"Undoubtedly, it is distinctly settled that can be compelled to set aside a verdict to the

a mere scintilla, a spark, which arrests attencontrary” (Patton v. T. & P. Ry., 21 S. Ct. tion, and then from mere lack of vitality 275, 276, 179 U. S. 658, 659 [45 L. Ed. 361]). fades away, is not sufficient to warrant the

This court has often attempted the defini- submission of an issue of fact to a jury, when tion or explanation. The precise point is best the scintilla is all that is developed by the illustrated by the difference between the legal party having the burden of proof. Such a duty not to submit and the discretionary showing has no substance, has not the quality duty to grant a new trial. Though the Su- of proof, and the judge may lawfully say so preme Court had several times used language to the jury. And it must be admitted that which seemed to ignore any such distinction, the Supreme Court has gone a step farther Judge Lurton, in Mt. Adams Co. v. Lowery than this, and assigned to the province of the (C. C. A. 6) 74 F. 463, 20 C. C. A. 596, in a court the right to direct the jury in those casthorough opinion, develops the difference. es standing between those where there is a He quotes with approval :

mere scintilla and those where there is sub“A scintilla of evidence, or a mere surmise stantial evidence, standing in a borderland, that there may have been negligence on the so to speak, where the evidence is so vague, part of the defendants, clearly would not jus- indefinite, or inconsequential as not to furtify the judge in leaving the case to the jury. nish a reasonable foundation on which a verThere must be evidence upon which they dict could rest. might reasonably and properly conclude that "In other cases it is said the condition there was negligence.

Applying the contemplated in which the judge may direct maxim, 'De minimis non curat lex,' when we the verdict is when, 'in his deliberate opinion,

V. a

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10 F.(20) 277 there is no excuse for a verdict save in favor Coming to the facts of this case: We are of one party.'

And by 'evidence convinced that there was evidence sufficient we mean something of substance and relevant to support findings that there was gas in the consequence, and not vague, uncertain, or ir- mine at the time and place where plaintiff relevant matter not carrying the quality of was put to work, that defendant should have 'proof' or having fitness to induce convic- known it, and that there was negligence in tion.”

permitting it then to have been there, as well In Jenkins Co. v. Aipena Co. (C. C. A. 6) as that plaintiff's immediate nausea and head147 F. 641, 77 C. C. A. 625, Judge Cochran, ache came from this gas. It may well be that speaking also for Judges Lurton and Sever- upon this printed record the weight of the ens, varies the form of the rule by saying: evidence on each of these questions is very

"What constitutes such evidence may be strongly against the plaintiff; upon that we indicated in another way. If the evidence intend to express no opinion, because that is favoring such facts of the plaintiff's case is a jury question. Some conceded facts that such that reasonable men may fairly differ as seem inconsistent with these inferences may to whether it establishes them, then it is sub- perhaps be explained by assuming that plainstantial. If, however, it is such that all rea- tiff was more susceptible than the experienced sonable men must conclude that it does not miners and would be affected by conditions establish them, then it is not substantial.”

which they did not even notice; but all matIn Virginia Co. v. Hawk, 160 F. 348, 87 ters of this kind were for the jury. C. C. A. 300, this court said, again by Judge The question whether there is any room Cochran, and in language applicable in large to attribute his later serious condition to this degree to the case at bar:

experience requires a more detailed statement. “But a case should never be left to a jury There is nothing tending to show that this simply on a question of probabilities, with a

gas could have been anything other than one direction to find in accordance with the great- of the two which more or less frequently do er probability. Probabilities may help out exist in Kentucky coal mines-carbon monitems of evidence from which an inference oxide and carbon dioxide. Each is the product can be drawn, but cannot take their place. of an incomplete and unbalanced combustion To allow a jury to dispose of a case simply resulting from fire in the mine. The only upon a weighing of probabilities is to turn fire which this record suggests is that incithem loose into the field of conjecture, and dental to powder or dynamite explosions in to have the rights of the parties determined blowing down coal. The after-effect of these by guess.” Then there is an apparent ap- explosions is commonly carbon dioxide. If it proval of the Maine holding that a merely may be assumed that sometimes carbon mon"quantitative probability” is not sufficient to oxide is produced, that does not seem now support a verdict.

important, because the effects of the two Richards v. Mulford (C. C. A. 6) 236 F. gases resulting from human inhalations seem 677, 679, 680, 681, 150 C. C. A. 9, furnishes to be the same except in degree. The mona fairly pertinent illustration. There was oxide produces more dangerous results with doubtless some evidence tending to show the same time exposure, or equal results with that the infection might have arisen in

less time exposure. the way claimed; but, checking that possible

Plaintiff's testimony was that he was in inference against the whole situation, not perfect health when he went to work that even a quantitative probability remained. morning drilling holes, that he soon began to See also cases there cited, and Copeland v.

feel faint, had a headache, and became nauHines (C. C. A. 6) 269 F. 361, in which it is seated and felt his face burn; that his faintsaid (page 363): "A mere conjecture, stand

ness increased until he complained to the ing upon a basis of uncertain inference, does foreman; that the foreman directed him to not make substantial evidence. Such a case


out into the main air passage, where the lacks both the quantitative and the qualita- foreman observed and exclaimed upon the tive essential minimum."1

condition of plaintiff's face, which was broki We have purposely omitted from considera

en out into a rash and pimples; that the foretion most of those cases where the question is man directed plaintiff to lie down in this air as to the conduct of the supposititious “reason

passage; that the plaintiff did so, and soon ably prudent man." Juries have so much com

felt better; that he continued in the mine the mon knowledge of that standard that only in the clearest cases can a court say there is no

remainder of the day, and ate his lunch and room for two inferences.

worked as a carpenter at timbering, as direct..

ed by defendant, until the end of the work- guage commonly used, the man is "knocked day at 4 o'clock, although he was continuous- out.” This unconsciousness will soon result ly more or less nauseated and weak; that, his in death, unless fresh air is inhaled or oxybad feelings and his face eruption continu. gen artificially supplied. Upon getting fresh ing, on the next day he consulted the mine air soon enough, there is rapid and complete doctor, who gave him some skin application recovery. The situation is analogous to that and made light of his bad feelings, and that caused by a near drowning; the victim within these continued to increase, leading along in- a very brief time either substantially recovers to great nervousness and partial paralysis, or dies. In case of a partial asphyxiation, culminating in the “nervous wreck” condi- not reaching unconsciousness, but at that tion; that after that day he was never able stage relieved by fresh air, no case has ever to do any work but constantly grew worse. been known where there was not a complete [2] It is quite obvious that such a situation recovery in a very short time, or where any presents a peculiar problem of cause and ef- results followed of the general character fect. In the ordinary run of affairs, all men claimed by plaintiff. There have been cases have some knowledge as to the natural effects of such results from carbon dioxide poisonor the probable causes of certain conditions. ing, but they have followed a chronic exposSuch matters do not depend, save as to their ure—where the amount of the gas was small extent and refinements, upon expert knowl- and produced at the time only minimum edge and opinion, and all of us may reason symptoms or none, but was continued for intelligently thereon, to a certain point. Up- days or weeks. That such chronic exposure on other subjects this is not true, as, for ex- might lead to such a nervous breakdown, ample, with regard to any chemical reactions while an acute exposure, as plaintiff debeyond those most common and familiar. It scribes his, would not, according to any is especially not true with diseases of the known professional experience, induce either nerves, or with abnormalities in physiological the immediate facial eruption or the ultimate functions. It is common knowledge that with nervous collapse, was the unanimous concluthe latter, and even more with the former, the sion of all the competent witnesses (unless real cause of the trouble is frequently most with the exception noted). obscure. Very often only the most expert It is true that these were mostly defenddiagnosticians can intelligently judge what ant's witnesses, and that they cannot obliter-the cause was, and frequently they can only ate any prima facie case otherwise made by say what it may have been. It is, we think, the plaintiff; but they do furnish a backcommon knowledge—if not, this record may ground which will aid in rightly appraising supply it—that a great share, perhaps most, any proof which is said to tend to the conof the cases of “nervous wreck” develop with- trary. Plaintiff called two medical men; neiout any known specific physical cause. ther one of them undertakes to question the When, therefore, a claim that such a result general situation and sum of professional followed from a known and specific physical knowledge which had been so stated; and thus or functional upset comes before a court as the background may be considered as suba basis for demanding compensation there- stantially conceded. for, there must, in aid of common knowledge, [3-6] The possible exception to this unanimbe some definite and competent expert proof, ity of expert opinion consists in this: One which shall at least show a fair and reason- of plaintiff's medical witnesses conceded that able probability of the cause and effect rela- he had never known or read of such results. tion. Of course, if it thus appears that the from such exposure, and did not venture his alleged cause may have produced the actual professional opinion that plaintiff's described result, and there is nothing to show any oth- exposure might be the moving cause. He er explanation equally probable, the proof contributed nothing to establishing this step may be sufficient. Each such case must stand of plaintiff's case. The other medical witon its own record.

ness for plaintiff, Dr. Hurst, possibly thought The testimony, both from those with prac- he was giving an opinion which would touch tical experience as miners and with expert this point, so that it becomes vital to know knowledge and experience as physicians, all just what he said to this effect. We assume concurs (unless with the exception to be not- (no objection having been made) that he sufed) to the effect that the inhalation of either ficiently qualified as an expert, though the of these gases produces nausea, headache, mere fact of being a practicing physician and faintness, soon followed, if the inhalation might not be enough. It seems probable that continues, by unconsciousness. In the lan- such reference to medical authorities as he


10 F.(20) 281 made had to do with the chronic, and not with WRIGHT V. ÆTNA LIFE INS. CO. * the acute, case, and hence they were clearly

(Circuit Court of Appeals, Third Circuit immaterial. We cannot find that he under

February 3, 1926.) took to give his opinion on the very point as

No. 3361. it existed at the time of the trial, and as it might have been developed by hypothetical 1. Insurance fm668 (3)-Where facts are un. question, and which then could have been

disputed, court should construe policy, and

decide if it applies. tested on cross-examination. He stated: “I thought it possible for his condition [four is predicated are undisputed, it is duty of court

Where facts on which liability of insurer months after exposure, two years and four to construe policy, and decide if it applies. months before trial] to have been caused by

2. Insurance en 146(3)-Automobile rider, isbeing overcome by gas in the mine.” But he

sued in consideration of additional premium, says that he based this opinion on the his- construed to sustain indemnity sought by astory of the case as stated to him by plaintiff. sured.

That history necessarily included, we Additional policy, in form of automobile would suppose, all the subjective symptoms rider, issued in consideration of payment of which plaintiff claimed from the exposure up tion canon that, when words of policy are, with

additional premium, is governed by constructo the time of the statement, and any expert out violence, susceptible of two interpretations, opinion based in material part on such sub- that which will sustain the indemnity assured jective symptoms, stated to the doctor to sought to obtain should be preferred. qualify him to testify, cannot be received. 3. Insurance 527—Automobile rider, attachB. &0. R. R. v. Mangus (C. C. A. 6) 294 ed to policy covering injuries to assured "while F. 761, 762. The rule would be otherwise as riding in" car, construed. to subjective symptoms stated to a physician

An additional policy, in form of automobile to get treatment and cure (Union Pacific v.

rider, covering injuries received "while riding

in" automobile, held to cover accidents which McMican (C. C. A. 8] 194 F. 393, 395, 114 might reasonably be expected to happen C. C. A. 311); but it does not appear that riding in a car, and to cover injury received this first statement by Baker to the doctor when assured jumped or was thrown from car

after driver lost control. was made to get treatment; later statements, possibly referred to, were made after suit 4. Insurance cm 146(3)-Court justified in rebrought, and under circumstances not shown. solving ambiguity, which could have been This witness presented no professional rea

easily removed, against insurer. sons for his conclusion, nor theory as to how

Where automobile rider attached to policy,

though containing certain exceptions, did not or why the results could follow. The record provide against liability to assured, who jumped indicates to us either an inability or an un- from machine, court was justified in resolving willingness to ask or to answer, intelligently ambiguity as to liability against insurer. and clearly, the precisely important ques- Woolley, Circuit Judge, dissenting. tion.2 In such a situation we are satisfied that his testimony, which he perhaps meant,

In Error to the District Court of the and perhaps did not mean, to be a real ex

United States for the Middle District of pression of his professional opinion upon the Pennsylvania; Charles B. Witmer, Judge. point in issue, and which, if so intended, Suit by Helen A. Wright against the lacked substantial basis in the respect point Ætna Life Insurance Company. Judgment ed out, constituted at the best, only that scin- for plaintiff for part only of recovery sought, tilla of proof which under the federal rule is and she brings error. Reversed and remandnot substantial evidence justifying a submis- ed. sion to the jury. Though it may take lodg

John P. Kelly, of Scranton, Pa., and P. ment in the mind, it is not “fit to induce be- F. O'Neill and F. W. Wheaton, both of lief”_“from lack of vitality it fades away.” Wilkes-Barre, Pa., for plaintiff in error. The judgment must be reversed, and the

W. A. Valentine and James P. Harris, case remanded for a new trial.

both of Wilkes-Barre, Pa., for defendant in 2 Perhaps the most definite thing in the record is: "Q. When a man does not get enough

Before BUFFINGTON and WOOLLEY, to prove immediately fatal, would it produce nervousness, and probably paralysis, of the Circuit Judges, and CLARK, District Judge. lower limb and the arm, and a burning in the limbs? A. Yes, sir." This question does not BUFFINGTON, Circuit Judge. On necessarily involve the element of a single brief October 9, 1907, the Ætna Life Insurance experience; indeed, it would seem that it reasonably should be interpreted as referring to a Company, in consideration of the payment to chronic exposure.

it of a premium of $25, issued to Thomas A.

*Rehearing denied May 6, 1926.



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