Carson v. Jackson

• Decision Date: 05 June 1922
• Docket Number: 3736.
• Citation: Carson v. Jackson, 281 F. 411 (D.C. Cir. 1922)
• Parties: CARSON v. JACKSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

281 F. 411

CARSON v. JACKSON.

No. 3736.

United States Court of Appeals, District of Columbia.

June 5, 1922

Submitted April 6, 1922.

Appeal from the Supreme Court of the District of Columbia.

Henry E. Davis and W. L. Houston, both of Washington, D.C., for appellant.

George W. Offutt and C. V. Imlay, both of Washington, D.C., for appellee.

SMYTH Chief Justice.

The appellee, by her next friend, sued the appellant for damages sustained by her through his alleged negligence. The declaration is in four counts, differing from one another in nothing that is material on this appeal. She states that she was suffering from a disease of the bone of the left arm known as osteomyelitis of the radius, and she applied to the defendant, who is a physician and surgeon, for medical treatment; that he undertook to treat her in consideration of the promise of a reward to be paid by her father; that through negligence, he at first failed to discover the presence of the disease, or the extent thereof, and treated her arm as if it were not afflicted with the disease named that afterwards he discovered the disease, and negligently and unskillfully treated the same, with the result that it was not arrested, but, on the contrary, was permitted to continue its attack upon the arm, thereby producing great pain and causing the arm to become deformed. The defendant filed two pleas-- one of not guilty, and one that the cause of action was barred by the statute of limitations. Plaintiff by an amended replication set up her infancy, to which defendant demurred. The demurrer was overruled, and he joined issue on the replication. There was a verdict and judgment for the plaintiff.

Appellant groups the points to be argued under four captions:

1. The negligence charged occurred, if at all, he says, in June, 1915, and, as the declaration was not filed until July 20, 1918, more than 3 years afterwards, the action was barred by the statute of limitations. Section 1265 of the Code ordains that an action for negligence must be brought within 3 years from the time when the right to maintain it accrued, but provides:

'That if any person * * * shall be at the time of the accruing of such right of action under twenty-one years of age, * * * such person or his proper representative shall be at liberty to bring such action within the respective times in this section limited after the removal of such disability.'

The limit, as we have seen, with respect to this action, is 3 years. The statute, therefore, gives a minor 3 years after arriving at his majority to institute the action. Appellant does not deny this, but says that, if the minor brings the action during his minority, he must do so within 3 years from its accrual. If this be correct, we would have the anomalous situation of a minor being barred after 3 years from bringing action during his minority, but free to bring it at any time during a period of 3 years after he had reached 21 years of age. This is not the correct meaning of the statute. The minor, in our judgment, has the entire period of his minority and 3 years thereafter within which to institute the action.

A contention similar to the one now made by appellant was advanced many years ago in Chandler v. Villett, 2 Saund. 117, 120, and rejected as untenable. In accord with the decision in that case are Buswell, Limitations and Adverse Possession, Sec. 107; Angell, Limitations (5th Ed.) 196; Hopkins v. Virgin, 11 Bush (74 Ky.) 677, and Whirley v. Whiteman, 1 Head (38 Tenn.) 609, 616. Appellant produced no authority in support of his position, and we are not aware of any.

2. Surgeons were asked a hypothetical question, based on the testimony of laymen relative to the condition of the child's arm and the treatment given by the defendant, which concluded with these words,

'In your opinion, would you say that the doctor had given the case the care and attention which a physician and surgeon of ordinary skill and ability practicing in the District of Columbia would have given under all the circumstances as related?'

Objection was made to it on the ground that it was put at an inapt time, that no medical witness had testified to what was done, that the treatment as given to the arm by the defendant was described to the jury by laymen, knowing nothing about surgery, anatomy, or medicine, that a hypothetical question to a scientific witness based on such testimony was simply valueless, and that the question does not correctly hypothesize the testimony introduced in the case, and, besides, is leading.

The ground on which it is claimed the question was not asked at a proper time is not disclosed, and therefore we put aside that part of the objection as of no moment. We see no reason why the testimony of laymen concerning the treatment given by defendant to the child's arm was not a sufficient basis for the hypothetical question. The laymen who testified were found competent by the court, we must assume, to give the testimony in question, else it would not be in the record, and appellant does not say it was improperly admitted. The surgeons, men eminent in their profession in the District, regarded it as sufficient to enable them to express an opinion concerning the treatment given by the defendant. Of course, testimony of laymen or experts might fall so far short of describing a situation that the court would be obliged to exclude a hypothetical question based upon it. But our examination of the record shows that this was not the case here. It was open to the defendant to show that the testimony did not correctly describe the treatment or condition of the child, and, if he had satisfied the jury that it did not, the answer of the surgeons, bottomed on it, would necessarily have failed of effect.

The objection that the question did not correctly hypothesize the testimony is too general to raise any question for our consideration. Counsel should have pointed out specifically the testimony which was improperly omitted or included, so as to bring sharply to the attention of the trial court the defect complained of. Guerini Stone Co. v. Carlin Construction Co., 248 U.S. 334, 39 Sup.Ct. 102, 63 L.Ed. 275; Beaver v. Taylor, 93 U.S. 46, 23 L.Ed. 797; Robinson & Co. v. Belt, 187 U.S. 41, 23 Sup.Ct. 16, 47 L.Ed. 65; McDermott v. Severe, 202 U.S. 600, 26 Sup.Ct. 709, 50 L.Ed. 1162; Washington & O.D. Ry. v. Slyder, 43 App.D.C. 95. If the defect was a serious one, the court would undoubtedly have required the plaintiff to amend it, or refused to permit it to be answered, because that would have been its duty, and we must assume it would have done what the law requires. Shreveport v. Cole, 129 U.S. 36, 42, 9 Sup.Ct. 210, 32 L.Ed. 589. Thus error would have been avoided, and an appeal to this court on that point rendered unnecessary. Hypothetical questions 'are usually based upon a large number of facts, and it is hardly fair to make an objection in a general way, without pointing out the particular part objected to. ' State v. Ginger, 80 Iowa, 574, 577, 46 N.W. 657.

With respect to whether the question was leading, perhaps it would have been better if the expert had been asked whether in his opinion the treatment was in accordance with the standards mentioned in the lines quoted above. However, the question propounded could not have prejudiced the defendant. We assume that the expert well knew, before the question was asked, what answer was expected of him, and he was not, therefore, influenced by the form of the interrogatory. Where the court is satisfied that wrong was not done, even though a technical rule of procedure was ignored, it is its duty to overrule the objection. Judicial Code, Sec. 269, as amended by 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, Sec. 1246).

As a further objection to the question, it is asserted that, while the witness might have been asked whether the treatment indicated was proper or improper, skillful or unskillful, it was error to ask him whether or not the defendant had been guilty of negligence or malpractice. To permit such a question, says the appellant, was equivalent to allowing the witness to express himself on the question to be answered by the jury. We might dispose of this objection by saying that it was not raised in the lower court, and therefore is not a subject for our review. Pennsylvania R.R. Co. v Minds, 250 U.S. 368, 375, 39 Sup.Ct. 531, 63 L.Ed. 1039; Budd v. United States, 48 App.D.C. 332; Allis v. United States, 155 U.S. 117, 15 Sup.Ct. 36, 39 L.Ed. 91; Columbia Aid Ass'n v. Sprague, 271 F. 381, 50 App.D.C. 307. By the question the witness was not asked to say whether or not the defendant had been guilty of negligence or malpractice, although probably that was the effect of the question. In order that the plaintiff might make out her case, it was necessary for her to show to the satisfaction of the jury that the defendant had not given her the care and attention which a physician and surgeon of ordinary skill and ability practicing in the District would have given under the circumstances related. This is not denied. She could not prove it, except by surgeons who knew what care and attention such surgeons would have given. Laymen would have been incompetent to testify upon the subject. The jurors knew nothing about it. It was quite different from an ordinary case of negligence, where the jury is able to solve the question by applying thereto their own experiences. In such a case the test is: How would a reasonably prudent man have acted under the circumstances? Texas & Pacific Ry. v. Barrett, 166 U.S. 617, 619, 17 Sup.Ct. 707, 41 L.Ed. 1136. There is no room for expert testimony in a case like that. But here it was necessary that the experts should tell the jury the essential thing, namely, whether...