Dewitt v. Johnson
170 Okla. 625, 41 P.2d 476, 1935 OK 60 (1935)
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Rule of Law:
Spontaneous and natural expressions of pain and suffering are admissible evidence, even if made long after the injury and not to a physician. A child between seven and fourteen years of age is presumed incapable of contributory negligence unless evidence to the contrary establishes their capacity.
Facts:
- Beulah B. Johnson, a seven-year-old child, attempted to cross Second Street at the intersection of Second Street and Keeler Avenue in Bartlesville.
- Ernest Dewitt was driving his Hudson sedan west on Second Street.
- Beulah was walking in the pedestrian lane, a little over halfway across the street, when she was struck by Dewitt’s car.
- Eyewitnesses testified that the rear wheel of Dewitt’s car ran over Beulah’s body.
- Dewitt himself testified that he did not see Beulah and was unaware he had struck her until his passenger alerted him.
- Beulah sustained injuries to her leg and stomach, suffered pain, and showed impairment of strength for approximately 36 months after the accident.
Procedural Posture:
- Beulah B. Johnson, a minor, sued Ernest Dewitt in a trial court to recover damages for personal injuries.
- The jury awarded a verdict to Beulah B. Johnson in the sum of $2,000.
- Ernest Dewitt filed a motion for a new trial, which the trial court overruled.
- Ernest Dewitt, the defendant, appealed the judgment to the Supreme Court of Oklahoma.
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Issue:
1. Is a non-physician's testimony regarding a child's spontaneous and natural expressions of pain and suffering, made long after an injury, admissible evidence? 2. Is it reversible error for a trial court to instruct a jury on contributory negligence for a seven-year-old child without also instructing on the child's capacity or the proper standard of care for infants, where there is no evidence presented by the plaintiff showing the child's contributory negligence?
Opinions:
Majority - PER CURIAM
Yes, the general rule permits a non-physician to testify about a child's spontaneous expressions of pain and suffering, and a child between seven and fourteen years of age is presumed incapable of contributory negligence unless evidence of capacity is shown, which affects the reversible error analysis of jury instructions. The court affirmed the trial court's admission of the mother's testimony regarding Beulah’s pain complaints, adopting the general rule that spontaneous and natural expressions of pain and suffering are competent evidence regardless of whether they are made to a physician or long after the injury. The court cited 64 A.L.R. 557 and Wigmore on Evidence, explicitly rejecting the “New York physician-limitation rule” as inconsistent with precedent, principle, good sense, and itself. The court found no reversible error in the trial court's jury instruction on contributory negligence, even though it noted the instruction held the seven-year-old plaintiff to an adult standard of care without instructing on the capacity of infants, thus being “much more favorable to the defendant than the evidence and the law applicable warranted.” However, the defendant failed to present any evidence from the plaintiff's case tending to show contributory negligence. The court emphasized that contributory negligence on the part of a child of seven years is never presumed, and a presumption of incapacity prevails unless evidence to the contrary is introduced, citing Washington & Georgetown R. Co. v. Gladmon, Bellamy v. Kansas City Rwys. Co., and Pratt Coal & Iron Co. v. Brawley. Since no evidence was introduced to show Beulah's mental capacity for contributory negligence, the instruction did not constitute reversible error. The court also determined that merely stating the contents of pleadings, including an allegation of permanent injuries, was not prejudicial error when the jury was cautioned that pleadings are not evidence. Lastly, the refusal of the defendant's requested instructions on speculation was not error given that the jury was adequately instructed on the burden of proof, and the $2,000 verdict was not deemed excessive given the evidence of injury and prolonged suffering.
Analysis:
This case clarifies significant evidentiary rules for personal injury claims involving child plaintiffs. By adopting the 'general rule' for pain and suffering testimony, the court ensures that subjective experiences of pain, especially for children who may not articulate their suffering to medical professionals, can be more readily presented as evidence. The explicit recognition of a presumption of incapacity for children aged seven to fourteen regarding contributory negligence places a clear burden on defendants to affirmatively demonstrate a child's specific capacity for negligence. This ruling serves to protect child plaintiffs and provides clearer guidance for courts on admitting evidence of pain and properly assessing a child's responsibility in accident cases, potentially influencing how negligence is analyzed for minors in future litigation.
