Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KELLY v. MARTINO (11/09/53)

November 9, 1953

KELLY
v.
MARTINO, APPELLANT



Appeals, Nos. 100 and 101, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 3648, in case of Charles R. Kelly and John P. Kelly v. Thomas S. Martino. Judgment affirmed.

COUNSEL

Kim Darragh, for appellant.

T. Robert Brennan, with him Raymond L. Scheib and Brennan & Brennan, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 375 Pa. Page 245]

OPINION BY MR. JUSTICE MUSMANNO

At the trial in this case the plaintiff's lawyer asked of a certain Dr. Osmond his opinion on the origin and cause of the plaintiff's disablement. Over the defendant's counsel's objection, the doctor testified that in his opinion the plaintiff's condition was the result of injuries sustained in an accident which occurred on September 26, 1947. The jury returned a verdict in favor of the plaintiff, and it is mainly from the refusal

[ 375 Pa. Page 246]

    of the lower court to sustain the defendant's objection that a reversal is being urged here.

When Dr. Osmond testified that the plaintiff had given him a history of the accident, plaintiff's counsel proceeded abbreviatedly to review that history to the witness and then to ask him: "Is that the history you received?" The doctor replied: "Approximately, yes." This question was not objected to nor did defendant's counsel move to strike out the answer.

There can be no doubt that the doctor, called as an expert witness, was empowered to state his scientific opinion on facts presented to him, because that is the very purpose of expert testimony. The expert does not warrant the accuracy of the facts; he only assumes responsibility for the conclusion he draws from the assumed facts. If the jury accepts the foundation of fact it then decides what credence it will impart to the doctor's reasoning and applied medical knowledge built upon that foundation. If the jury detects fissures of undependability in that foundation, then the expert opinion necessarily falls of its own weight. As long ago as 1874, this Court, through Mr. Justice GREEN, delineated the rules applicable to opinions based on facts not personally known to the witness: "But if either the facts are stated hypothetically in one question, or if the whole of the testimony delivered by one of the parties or by certain of the witnesses for one party is made known to the expert either by his reading it or hearing it, and he is then asked his opinion upon it assuming it to be true, in either case the opinion is sought upon an assumed state of facts, and may therefore be given." (Yardley v. Cuthbertson, 108 Pa. 395, 450)

Whether the question is stated in approved hypothetical form or as an account of assumed established fact (so long as the jury ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.