ON MOTION FOR REHEARING. The defendant in its motion for a rehearing complains of the excessiveness of the verdict, and particularly stresses the alleged erroneous admission of testimony of Dr. Arthur H. de Masy and asserts that his testimony to the effect that there was a "possibility of plaintiff's alleged injury being of a permanent character" was reversible error, and would not furnish sufficient testimony to justify an instruction leaving it to the jury to determine whether or not the plaintiff was permanently injured and, if so found, to allow damages to her on that basis.
The defendant ignores the fact that there are other statements in the record which would justify leaving it to the jury to determine whether or not her injuries were permanent. The defendant ignores plaintiff's own testimony in regard to the permanency of her injuries and the fact that at the time of the trial, four years later than the date of the accident, she still had pains in the region of the fracture and a limp, or defect in her walk, and an inability to raise her limb sideways and upward, more on the left side than the right. Defendant also overlooks the testimony of Dr. de Masy who, not only treated her at the time of the reception of her injuries, but, examined her four years later, about the time of the trial, and found that she still complained of pain around her shoulder, some thickening *Page 266 to the front of the left shoulder, some pain in the region of the fracture and he found tenderness still existing in that region and he found a slight defect in her walk and an inability to raise her limb upwards and sideways, more so on the left side than on the right, and found there would be no possible way ofcorrecting it.
We set out from the record the question and answer so strongly criticized in defendant's motion for a rehearing.
On redirect examination of Dr. de Masy by plaintiff's counsel, occurs the following:
"Q. From your examination of the injury, doctor, in your opinion would you say she would continue to suffer in the future from the injury sustained? A. Well, this is four years after the time of the injury, and she still complains of pain in that region, and there is also tenderness elicited in that same area, so, four years after date, with that finding, there is a possibility of that continuing to bother her.
"Mr. Grattendick: That is all, doctor.
"Mr. Evans: I object to that, and move the court to strike it out, as not being based on medical opinion, but simply speculation. He says there is a possibility of it continuing.
"The Court: Mr. Grattendick, it seems to me it should be stricken, unless you have the witness amplify further on it.
"Mr. Grattendick: (to reporter) Will you read the question, please? (Whereupon the reporter read from the record the last question above.)
"Mr. Grattendick: What was the answer? (Whereupon the reporter read from the record the answer to the last question above.)
"Mr. Grattendick: I think that answer is all right.
"Mr. Evans: Answers the question, but in a speculative way.
"The Court: I think, taking the answer as a whole, the court will let the answer stand. To which ruling of the court defendant, by counsel, then and there duly objected and excepted and still continues to object and except."
The only ground in defendant's motion for a new trial in respect to the admission of improper testimony reads as follows:
"Because the court erred in admitting irrelevant, incompetent, immaterial and prejudicial testimony offered by plaintiff over and against the objection of defendant."
It will be noted that there was no objection made by defendant to this alleged improper testimony until after the testimony was given and defendant's real complaint was the refusal of the trial court to strike it out. There is no ground set out in the motion for a new trial which complains of the refusal of the trial court to strike out this alleged prejudicial answer.
Defendant's motion for a rehearing is overruled. Becker andMcCullen, JJ., concur. *Page 267