Carthage Tpk. Co. v. Andrews

• Decision Date: 26 May 1885
• Citation: 102 Ind. 138,1 N.E. 364
• Parties: Carthage Turnpike Co. v. Andrews.
• Court: Indiana Supreme Court

102 Ind. 138

1 N.E. 364

Carthage Turnpike Co.

v.Andrews.

Supreme Court of Indiana.

Filed May 26, 1885.

Appeal from Henry circuit court.

C. G. Offutt and R. A. Black, for appellant.

New & Jones, for appellee.

Zollars, J.

One of appellant's bridges, over which appellee was driving, broke and fell, and he was thereby injured. He brought this action to recover damages, charging appellant with negligence in not maintaining the bridge in a proper and safe condition. Besides the allegations of other injuries received, it is averred in the complaint that appellee's spine was so permanently injured that he cannot, nor will he ever be able, to follow his profession as a practicing physician. Appellant predicates one of its assignments of error upon the overruling, by the court below, of its motion for a continuance. In the affidavit filed in support of the motion, it is stated that it is expected to prove, by an absent witness, that, prior to the injuries complained of, appellee was “afflicted with spinal disease and trouble of the same character now alleged in said complaint to have been caused by said alleged injury, and to such an extent that said plaintiff claimed and alleged to said witness that he was unable to practice his profession, and would have to abandon it.” It is further stated in the affidavit “that said witness is a physician, and, prior to said alleged injury to the plaintiff, was consulted as such physician by said plaintiff, in regard to his said spinal affliction and disease,” etc.

Aside from the question that might have been made here, that the affidavit is not in the record, not having been brought into it by bill of exceptions or order of the court, and aside from other objections to the affidavit, some of which are perhaps well taken, the objection that the absent witness is shown to be incompetent to testify to the facts alleged to be within his knowledge, is a fatal objection. It is clearly shown by the affidavit that all the information the absent witness has, is what came to him as the physician of appellee. Such information cannot be divulged by the physician as a witness. Masonic Mut. Ben. Ass'n v. Beck, 77 Ind. 203;Excelsior Mut. Aid Ass'n, etc., v. Riddle, 91 Ind. 84;Pennsylvania Mut. Life Ins. Co. v. Wiler, 100 Ind. 92. Appellee probably might have waived the point, and allowed his physician to testify, but we cannot indulge the presumption that he would have done so, in order to overthrow the ruling of the court below, especially when he resisted the continuance, and argues here the incompetency of the witness to testify to the facts stated in the affidavit for continuance. It is argued at length by appellant's counsel that the motion for a new trial should have been sustained because of the admission of improper testimony by the trial court. It is urged on the part of appellee that no such question is before us, because the record does not show that proper objections were made, and exceptions saved. In some instances that is so, and without extending this opinion to point out the instances where such is the case, we notice the points in argument where the objection and exception seem to have been properly made and saved.

James O. Butler, one of appellee's witnesses, testified that he had known him since his boyhood, and had seen him frequently, and during the five years preceding the trial had lived near him. After having stated this, the following questions, over appellant's objection, were put to the witness by appellee's counsel, and the following answers made, viz.: “ Question. What has been his health and physical condition from the time you have known him, up to the time of his injury? Answer. Why, his health up to that time was good; he seemed to be stout and hearty, so far as I know. Q. What was his physical appearance? A. Why, he appeared to be stout and hearty. Q. Was there any other appearance? A. He was a good, sound looking man with some life about him. Q. How was he as to flesh before this injury? A. He was fleshy; a good deal fleshier than he is now. Q. How was he as to weight? A. He was a good deal heavier than he is now; he used to weigh from one hundred and eighty to one hundred and eighty-five pounds. Q. Since the injury, what has been the condition of his health? A. He has had but very poor health. Q. What has been his physical appearance? A. He has been very weak and slow; he does not seem like the same man, hardly, in physical strength. Q. How as to his flesh and weight since the injury? A. Well, he has fallen off considerably. Q. What changes, if any, have you observed in the expression of his countenance? A. He did not look like the same man, hardly, that is, to the best of my knowledge; he did not seem to notice things like he used to.”

James Anderson, another of appellee's witnesses, testified that he had known him intimately, and seen him often during the last 24 years. After having thus testified, the following questions, over appellant's objections, were propounded to the witness, to which he made the following answers: “ Question. What was his physical condition as to health up to the time of the injury? Answer. Well, his appearance looked like he might be a stout man. I always supposed he was from his appearance. Of course, I am no doctor. He had a healthy look. Q. What was his condition as to health and physical condition on yesterday? A. Why, he looked very much worn down to what he was the last time I saw him.”

The substance of the testimony of these witnesses, taken as a whole, is that, from their long and intimate acquaintance with appellee, from their observations of him, and his physical appearance, certain characteristics of which they gave, in their judgment, he was a stout and healthy man before the injury, and sick, and not so stout, thereafter. Taken as a whole, the most that can be fairly said is that the testimony amounts to the opinions of the witnesses, based upon their observation and the facts stated. It would have been more orderly to have drawn out all of the statements of the witnesses before asking their judgment or opinion, but as the jury were put in possession of the facts as a part of the testimony in chief, it would seem that the manner and order in which it was done ought not to be fatal to appellee's case. It should be observed, too, that the objections below were not that the witnesses had not stated the facts upon which they based their opinions. The objections were broad and general ones, that the witnesses could not give their opinions, because they were not experts. Regarding the testimony, as we think it should be regarded, it is brought within the general rule that non-expert witnessesmay give their opinions, if they state, as far as possible, the facts and observations upon which they are based. That non-expert witnesses may thus give their opinions, is well settled by the adjudication of this court. House v. Fort, 4 Blackf. 193;City of Indianapolis v. Huffer, 30 Ind. 235;Benson v. McFadden, 50 Ind. 431;Holten v. Board of Com'rs, etc., 55 Ind. 194;Coffman v. Reeves, 62 Ind. 334;State v. Newlin, 69 Ind. 108;Mills v. Winter, 94 Ind. 330.

That a non-expert may give an opinion at all, is the rule of necessity. He must, in all cases, so far as possible, state the facts upon which he bases his opinion. When the case is one in which all the facts can be presented to the jury, then no opinion can be given, because the jury are as well qualified as the witness to form a conclusion. But there are cases where the witness cannot put before the jury, in an intelligible and comprehensible form, the whole ground of his judgment or opinion. When questions as to the conditions of the mind and body are the questions in issue, there are often many things in the acts, deportment, and appearances of the party that create a fixed and reliable judgment in the mind of the observer that cannot be conveyed in words to the jury. That a person appears to be sad or sick may well be known by observation; and yet there is no way to describe the appearance except by the words that necessarily embody the conclusion reached by observation. In such cases, if the witness states that he is acquainted with, has had opportunity to observe, and has observed, the party,-this, it has been held, is sufficient to render the witness competent to state the condition of the party, mentally or physically. The weight to be given to such evidence, of course, will depend upon the intelligence of the witness, the intimacy of his acquaintance with the party, and upon other things that may appear by the examination in chief, and by a cross-examination. Bennett v. Meehan, 83 Ind. 566, and cases there cited. In this case the court quoted with approval from 1 Whart. Ev. § 512: “So an opinion could be given by a non-expert as to the matters...