No, 13173 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1976 

GERALD E . ANKENY , JR. , 

Plaintiff and Respondent, 

LAURIE GRUNSTEAD, ROLAND M. 

GRUNSTEAD and MILLIE GRUNSTFAD, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellants : 

Garlington, Lohn and Robinson, Missoula, Montana 

Sherman V. Lohn argued, and Gary L, Graham argued, 

Missoula , Montana 

For Respondent: 

Reno and Dolve, Billings, Montana 

James A. Reno argued, Billings, Montana 

Roger A. Kander, Long Beach, California 

Submitted: March 8, 1976 

Decided : JUR 2 4 1976 

Filed: rjUM 2 4 19-0 
Hon. A.B. Martin, District Judge, si~ting for Chief Justice 

James T. Harrison, delivered the Opinion of the Court: 

In this action the district court, Yellowstone County, 

sitting without a jury, awarded Gerald E. Ankeny, Jr. $83,302 

as damages for injuries claimed to have been sustained on June 

15, 1970, as a result of an intersection collision between a 

motor bike operated by Ankeny and a car owned by Roland M. 

Grunstead and Millie Grunstead and driven by their daughter 

Laurie Grunstead. Of the total damages the court awarded $409 

for emergency hospital expenses, $5,248 for medical care provided 

by the Veterans Administration, and the balance of $77,645 for 

general damages. 

Grunsteads do not, on this appeal, deny responsibility 

for the collision, but claim as a defense that the vehicular 

collision was not the cause of the low back injuries for which 

the court in large part awarded damages. Ankeny began experiencing 

low back trouble while in the military service in 1965. From 

that time he was plagued with low back pain for which he repeatedly 

sought medical relief. His trouble was finally diagnosed as 

spondylolisthesis, a congential low back defect. As a last resort 

he underwent surgery for a spinal fusion, which was performed 

February 16, 1969. 

Following a postoperative period of about one year, Ankeny 

was directed to Doctor Pearlman, a radiologist with the Denver 

Veterans Hospital. According to Ankeny, Doctor Pearlman examined 

him, told him to discontinue the use of the back brace and reLeased him without prescribing further medication or treatment. 

Ankeny testified that from March 1970 to June 15, 1970, a period 
oi about three and one half months, he was free of low back pain. 

The inference which Ankeny would have drawn from the foregoing 

circumstances is that a solid fusion had been achieved but that 

it was displaced by the force of the intersection collision. 

To fortify this inference, Ankeny called Doctor Hertwig 

as a witness. Doctor Hertwig testified that as Ankeny's ward 

physician he had examined X-ray reports prepared by Doctors 

Pearlman, Edwards and McCowen. In response to a request for admission by Grunsteads, Ankeny admitted these reports were genuine. 

Pertinent portions of Doctor pearlman's report were put in evidence by this testimony: 

"Q. Well do you have a copy of Doctor Pearlman's 

letter there? A. Yes, the X-rays were taken in 

February of 1970 at the Denver VA Hospital and I will read 

the reports as * * * As seen by Doctor Pearlman, 'Mr. 

Gerald Ankeny had a back fusion * * * in February, 1969. 

X-rays of his back in February of 1970 to this hospital, 

show a solid fusion and stable back.' And then he goes 

on to state * * * 'There is no disability in, and he is 

able to work, performing any activities that he wishes. ' , and it is signed by N. Pearlman, M.D." 

Dr. Hertwig also testified from a hospital discharge 

summary dictated by a Dr. Edwards for a hospitalization period 

running from August 13 through September 21, 1969. Dr. Hertwig 

summarized this report: 

"A. * * * the report at that time was that Mr. Ankeny 

complained of no radiation of pain down either leg, and 

straight leg raising and neurologic examinations were 

essentially negative. His fusion was stated to be 

moderately stable, and found this patient to be remarkably normal physically. X-ray of the lumbar area was 

essentially normal and showed .thearea of previous fusion." 

Dr. Hertwig after being shown an X-ray taken August 18, 

1969, was asked: 

"Q. Now with reference to that negative, is there 

anything there that indicates any findings that would 

indicate to you that there is not a solid fusion? A. No, 

there is not * * *.I' 
Dr. Hertwig next made a comparison of two X-rays, one 

taken in August 1969, before the accident, and one taken in 

August 1970, about two months after the accident. The doctor's 

comparison elicited the testimony that the 1970 X-ray showed "some 

increased subluxation, slipping forward of this vertebra, and I 

think you can see that distance there, a distance of about one 

centimeter ." 

Preliminary to posing a hypothetical question counsel stated, 

"Now from the facts that you have recited so far, it would appear 

there was a fusion and that following the fusion something happened 

which caused the X-rays taken in 1970 to show subluxation * * *.I! 

Because the "facts recited" had reference to the reports read by 

Dr. Hertwig, Grunsteads objected that the facts relied on in the 

hypothetical question should not be given probative weight. While 

counsel did not at this time clearly state that he was objecting 

on the ground of hearsay, subsequent objections to the use of the 

reports leave no doubt that hearsay was the basis of the objection. 

Dr. Hertwig responded to the hypothetical question by concluding that there was "considerable possibility" that the body 

blow received in the accident would have a "likely * * * effect" on 

Ankeny ' s fusion. 

At conclusion of Dr. Hertwig's testimony on direct examination, counsel for defendants moved: 

"MR. JONES: Prior to cross examination of the doctor, 

counsel for the defendants moves to strike any testimony 

and any opinions rendered by this witness which are predicated upon alleged factual reports by third parties, not 

present in the courtroom and not subject to cross examination, and moves * *-* to strike any testimony based upon 

his own knowledge, based upon his own expertise. 11 
In contradistinction to Ankeny's medical evidence, Grunsteads called two expert witnesses, Dr. McDonald and Dr. Drouillard, 

specialists respectively in orthopedic surgery and radiology. Both 

examined X-rays taken before and after the accident and each testified that essentially the same degree of fusion failure existed 

before the accident, as after the accident. It was Dr. McDonald's 

conclusion that the accident did not cause the fusion break down, 

and that while it "may have aggravated the situation * * * the aggravation was minimal compared to the existing problem." 

The crux of Grunsteads' appeal is that unless the X-ray reports of Dr. Pearlman and Edwards are given probative weight there 

is no substantial evidence to support the conclusion the collision 

was the cause of the fusion failure, particularly so in the light 

of the contrary testimony by Grunsteads' medical experts. 

We, therefore, turn to the question of what weight and 

consideration, if any, should be given to the medical reports 

objected to by Grunsteads. 

We find no difficulty in holding the reports are per se 

hearsay. Ankeny likewise does not question this facet of defendants' 

objection to the reports. Instead, Ankeny asserts there are other 

grounds justifying the reception and consideration of the reports 

by the trial court, notwithstanding their hearsay nature. 

One of these grounds is predicated on Grunsteads' request 

for an admission by Ankeny that the reports in question were genuine. 

Ankeny in substance claims the request for admission of genuineness 

is tantamount to Grunsteads introducing the contents of the report 

into evidence, and having done so, they waive any objection to 

Ankeny's use of the reports. This claim is hardly worthy of note. 
Grunsteads repeatedly pointed out that by asking for an admission 

of genuineness of the reports they were not conceding that the 

information contained therein was true. 

Ankeny next suggests that Dr. Hertwig's reliance on the 

reports gave the reports probative value for the purpose of determining the cause of the fusion break. We disagree and hold the 

probative value of the reports is limited to the use that Dr. 

Hertwig made of them. In making prognosis or recommending treatment, 

doctors frequently rely upon medical diagnosis made by others who 

are experts in a given specialty. Klaus v. Hillberry, 157 Mont. 

277, 485 P.2d 54. Dr. Hertwig's testimony clearly shows that his 

use of the reports was limited to advising Ankeny as to his condition and future care. For this limited purpose the reports were 

not objectionable on the ground of hearsay. Wallace v. Wallace, 85 

Mont. 492, 279 P. 374. 

During the course of trial, Ankeny sought to have Dr. Hertwig 

express opinions relative to the fusion break. The record is barren 

of any expert opinion by Dr. Hertwig on the critical issue of 

whether the fusion was solid or broken prior to the accident. The 

absence of such an opinion is understandable. At one point Dr. 

k.twig frankly admitted that he was not qualified to interpret 

X-rays. When questioned on cross examination relative to the critical 

issue, he stated he would have to defer to the opinion of a specialist 

in radiology and orthopedic surgery. In summary, the limiting 

circumstances of Dr. Hertwig's use of the reports denied Grunsteads any opportunity to test the truth of the reports by cross 

examination. The reports are therefore clearly hearsay and inadmissible for the purpose of showing that the accident was the cause of the 

fusion break. Shillingstad v. Nelson, 141 Mont. 412, 378 P.2d 393; 

Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57. 

- 6 - 
With the X-ray reports removed from consideration, the 

next issue raised is whether there is sufficient evidence to 

support the trial court's judgment as to the cause of the back 

defect. We keep in mind the rule that a trial court's findings 

will not be disturbed on appeal where there is substantial evidence 

to support them. Olsen v. Sundling, 128 Mont. 596, 281 P.2d 499. 

In Sands v. Superior Bldg. Co., 136 Mont. 531, 349 P.2d 314, the 

Court explains substantial evidence: 

"Substantial evidence has been defined by this 

court as such evidence 'as will convince reasonable men and on which such men may not reasonably 

differ as to whether it establishes the plaintiffs1 

case, and, if all reasonable men must conclude that 

the evidence does not establish such case, then it 

is not substantial evidence. I" 

In this case, the determination of whether the fusion was 

solid prior to the accident must necessarily be made by medical 

specialists sufficiently competent to assess the injury. It cannot 

be left to speculation, conjecture, inference or guess. Graham 

v. Rolandson, 150 Mont. 270, 435 P.2d 263. As said in Bearman v. 

Prudential Ins. Co. of America, 186 F.2d 662, 665, (10th Cir.1951), 

"only a medical expert with training, skill, and experience could 

form a considered judgment and express an intelligent opinion." 

With respect to causation the general rule as to proof required was set forth by Judge Jameson in Wilson v. Northland Greyhound Lines, 166 F.Supp. 667, 675 (D.Mont. 1958): 

" ' Plaintiff must prove by legally sufficient evidence 

that all the injuries for which he claims damages are 

properly attributable, in a medical sense, to the accident. While plaintiff need not establish such causal 

connection with certainty, he must do so with reasonable 

certainty or by a preponderance of the evidence. * * * 

There can be no recovery for an injury or condition which 

the evidence shows might have resulted from two or more 

causes, for only one of which defendant is responsible. 

So, too, it is not sufficient for one seeking damages for 
a condition claimed to have resulted from an accident or injury to show that such accident or injury 

might or could have caused the condition; other causes 

should be excluded. "I 

With the hearsay reports of Doctors Pearlman and Edwards 

excluded, and with Dr. Hertwig eliminated as an expert, the only 

legally sufficient testimony relative to the condition of the 

fusion before and after the accident is that of Dr. McDonald and 

Dr. Drouillard which clearly refutes the contention the accident 

caused the fusion to fail. We therefore hold there is no substantial credible evidence for the trial court's conclusion the 

accident was the cause of the fusion failure. 

Ankeny next proposes that if the evidence is not sufficient 

to show the fusion failure was caused by the accident, then the 

evidence is sufficient for the purpose of proving aggravation of 

the preexisting condition of his back. The case was not presented 

to the district court on this theory, but there is evidence to support some degree of aggravation. 

As we understand Ankeny's reasoning, the general damages 

awarded by the court was primarily for the pain and anticipated 

continuing discomfort of the low back injury. He argues it is 

unimportant whether the pain is from the break of the fusion in 

the accident, or from the aggravation of a preexisting fusion 

failure, because in either instance the pain and discomfort will 

be the same. From this he deduces the damages should be the same. 

However clever this argument may be, it does not take into account 

the full scope of Dr. McDonald's uncontradicted testimony. While 

the doctor's testimony gives medical support to Ankeny's theory of 

aggravation, the doctor minimizes the aggravation by comparing it 

with the condition of Ankeny's back prior to the accident. The flaw 
in Ankeny's contention is ,pointed out by the doctor. The preexisting condition of the back was much more serious injurywise 

than the aggravation of that condition. We therefore cannot accept 

Ankeny's proposition the damages would be the same under either 

theory. 

We recognize Ankeny is entitled to some special and general 

damages, but a proper assessment of these damages would require 

a new trial. If Ankeny can prove no more than minimal aggravation, 

any recovery on a new trial might not justify the delay and expense 

involved. As a means of providing Ankeny an alternative to a new 

trial, the district court's judgment is modified to award damages 

in the total amount of $15,000. In fixing damages in this amount, 

the $409 for special damages allowed by the district court is not 

included for the reason there is no legally sufficient evidence of 

such damage. We also exclude all but $500 of the medical bill submitted by the Veterans Administration for the reason that the medical 

treatment furnished by the Veterans Administration was primarily 

for physical and mental conditions not shown to be caused by the 

accident. 

If Ankeny should elect not to accept the judgment as modified, 

the judgment of the district court is reversed and the cause is 

remanded for a new trial on the issue of damages for aggravation 

of the injury. 

Judge, sitting for Chief Justice 

James T. Harrison. 
We Concur: 

Mr. Justice Frank I. Haswell, concurring in part and dissenting 

in part: 

I concur in the majority holding that there is no substantial credible evidence that the accident caused plaintiff's 

fusion failure. I also concur with the majority in finding evidence to support some degree of aggravation of a preexisting back 

injury. 

I cannot agree that we, as an appellate court, can separate 

and determine the amount of damages attributable to aggravation 

of the preexisting back injury from those attributable to the 

fusion failure, reduce the judgment accordingly, and give the 

plaintiff the option of accepting the reduced award or securing a 

new trial. The trial judge must make this factual determination and 

fix the damages accordingly. 

I would award a new trial on the amount of such damages. 

Justice. '-.