Armstrong v. Town of Ackley

• Decision Date: 05 March 1887
• Parties: ARMSTRONG v. THE TOWN OF ACKLEY
• Court: Iowa Supreme Court

32 N.W. 180

71 Iowa 76

ARMSTRONG v. THE TOWN OF ACKLEY

Supreme Court of Iowa, Des Moines

March 5, 1887

Appeal from Hardin District Court.

THE plaintiff claims that when walking along a sidewalk in the town of Ackley, owing to the defective and unsafe condition of the walk, she fell and was greatly injured. Trial by jury judgment for the plaintiff, and defendant appeals.

REVERSED.

J. H Scales, for appellant.

Huff & Pillsbury, for appellee.

OPINION

SEEVERS, J.

I.

The plaintiff was a witness in her own behalf, and testified that, several days after she fell on the sidewalk and was injured, Dr. Kelso was called to make an examination as to her condition, and prescribe for her, and she was asked: "What, if any, statement did you make to Dr. Kelso on his first visit, as to where and how you received the injury? And where you were suffering, if any?" And the plaintiff was further asked: "Did Dr. Kelso, on his first visit after the statement made by you, make an examination of your person to determine the cause of your complaint or affliction? If so, what did he say to you at the time was the cause of your ailment or affliction from such examination?" There were other questions of like import. This, and the previous question, were objected to; but the objections were overruled, and to the latter question the witness answered, "Yes, he examined me, and he said my liver was terribly bruised, and I was bruised inwardly; and he said he could not tell just where it would locate itself. I mean that he could not tell where it would be the worst, or where it was going to settle; I was bruised so bad." It was not material what Dr. Kelso said, but what the fact was. Dr. Kelso was not under oath, and the evidence of the plaintiff above stated was simply hearsay, and, in our opinion, inadmissible. Dr. Kelso was examined as a witness; and he described the condition in which he found the plaintiff; but, so far from using the language above stated, his description of her condition and symptoms was materially different, and therefore it cannot be said that the admission of the foregoing evidence was not prejudicial. That it is proper and competent for a physician, when called upon to make an examination of a person injured as the plaintiff claimed to be, to inquire and state the complaint made by such person, we think, is true. Such evidence, coming from that source, we think is clearly admissible. It was so held in Gray v. McLaughlin, 26 Iowa 279. Also, we think, a physician may give an opinion, after making such examination, as to the extent and consequences likely to follow the injury, and also what caused it. This is said in relation to certain objections made to the admission of other evidence. There are a great many such objections relied on by counsel, which we do not deem it essential to notice.

II. The plaintiff being unable to attend court, her deposition was taken, and she was asked: "Have you a knowledge of seeing and talking with Mrs. John Scanlon immediately after you arose from your fall, August 1, 1881? If so, what was said between you at the time?"--and other questions of similar import were also asked. These questions were objected to, but the objections were overruled. It is immaterial what Mrs. Scanlon said, and clearly it was hearsay and inadmissible. But counsel for the appellee justify the admission on the ground that it was known that Mrs. Scanlon would be a witness for the defendant, and, as the plaintiff could not attend court, her statement of what was said at that time could only be obtained by her deposition taken in advance of the trial. If the object was to contradict Mrs. Scanlon, the evidence should not have been introduced until she had testified; but it in fact was introduced, not in rebuttal, but in chief, and at least was clearly inadmissible at that time.

III. The plaintiff was asked and testified, against the objection of the defendant, what several physicians said was the matter with her at the time they severally made examinations as to her condition and afflictions. This was hearsay evidence, and should have been excluded. The doctors were not then under oath. Counsel for the defendant, as...