City of Warsaw v. Fisher

• Citation: 24 Ind.App. 46,55 N.E. 42
• Parties: CITY OF WARSAW v. FISHER.
• Decision Date: 25 October 1899
• Court: Indiana Appellate Court

24 Ind.App. 46

55 N.E. 42

CITY OF WARSAW

v.FISHER.¹

Appellate Court of Indiana.

Oct. 25, 1899.

Appeal from circuit court, Kosciusko county; H. S. Biggs, Judge.

Action by Leander T. Fisher against the city of Warsaw. Judgment for plaintiff, and defendant appeals. Reversed.

Black and Henley, JJ., dissenting.

Edgar Haymond, Bertram S. Lane, and Wm. D. Frazer, for appellant. Stookey & Biggs and James W. Cook, for appellee.

COMSTOCK, C. J.

Appellee sued appellant to recover damages for personal injuries occasioned by a defective sidewalk. The complaint is in three paragraphs. It alleges that appellant, as a city, was bound to keep its sidewalks safe for travelers over them; that it failed to perform this duty as to a particular portion; that said portion was suffered to become and remain rotten, decayed, defective, and dangerous to travelers for a period of six months prior to the happening of the accident; that appellee, while traveling over said portion, stepped upon one of the boards, which broke under him, and caused him to receive the injury for which he sues. The cause was tried by a jury, and resulted in a verdict and judgment in favor of the appellee for $3,500. Of the errors assigned, only those growing out of the action of the court in overruling the motion for a new trial are discussed. They will be considered in the order in which they are presented by appellant's brief.

The first error (as claimed) discussed is the action of the court in not permitting Dr. Berkit, a witness called by appellant, to testify. The testimony sought to be elicited from Dr. Berkit was in conflict with the statements made by appellee. The objection was sustained upon the ground that the information was confidential. Appellant insists that the statute rendering such information confidential is purely for the protection of the person under treatment, and that, when the patient removes the shield from the sick room, and publishes everything that occurs therein, there is no longer a reason to be served by closing the mouth of the physician. Counsel cite the following Indiana cases as supporting their position: Nave v. Baird, 12 Ind. 318;Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111;Becknell v. Hosier, 10 Ind. App. 5, 37 N. E. 580. The foregoing were suits for malpractice, and it was held that, where an attorney or a physician is sued by a client or a patient, and the client or patient testifies as to the advice given or services rendered, and directly attacks the skill, ability, and integrity of the attorney or physician, the defendant shall have the right to testify in his own behalf. In Lane v. Boicourt, 128 Ind., at page 423, 27 N. E. 1113, the court said: “If a patient makes public in a court of justice the occurrences of the sick room for the purpose of obtaining a judgment for damages against his physician, he cannot shut out the physician himself, nor any of those who were present at the time covered by the testimony.” These expressions of the court must be held to apply to the case under consideration, and not as setting aside the general rule announced in the following, among other, cases decided by the supreme court: Insurance Co. v. Deming, 123 Ind. 384, 24 N. E. 86, 375;Williams v. Johnson, 112 Ind. 273, 274, 13 N. E. 872;Insurance Co. v. Wiler, 100 Ind. 92;Association v. Beck, 77 Ind. 203;Association v. Riddle, 91 Ind. 84. See, also, Springer v. Byram, 137 Ind. 22, 36 N. E. 361. Appellant cites Treanor v. Railway Co. (Com. Pl.) 16 N. Y. Supp. 536. It is in point, and supports the doctrine for which appellant contends, but it cannot be reconciled with the foregoing decisions from our own state. The court properly excluded the offered testimony.

The second question discussed is the action of the court in not permitting one of the counsel for appellant, in the course of his argument before the jury, to comment on the fact that appellee had not called and examined as a witness Dr. Berkit, one of the physicians who had attended him; and the giving of instruction No. 9. These two alleged errors are discussed together. The instruction reads as follows: “Some comment has been made by counsel in argument upon the fact that Dr. Berkit, who was the attending physician of the plaintiff at the time of the alleged injuries, has not testified as to any fact concerning such injury. It is the law that confidential relations exist between a physician and his patient that cannot be disclosed unless waived by the patient. The fact that Dr. Berkit did not testify to any facts occurring during such confidential relations is a matter with which you have nothing whatever to do, and should not be considered by you in your deliberations, neither for or against the defendant, nor for or against the plaintiff; and it will not be proper for you to discuss, or in any manner consider, the same for or against either party.” In the second volume of the Encyclopedia of Pleading and Practice (page 714) the right of counsel to comment upon the absence of a witness is thus stated: “Counsel may comment upon the absence or nonproduction of testimony by the adverse party, when they are shown or presumed to be cognizant of the facts in issue.” The author cites Railway Co. v. White, 80 Tex. 202, 15 S. W. 808;Tipton v. State, 30 Tex. App. 530, 17 S. W. 1097;Gray v. Burk, 19 Tex. 228;Van Slyke v. Railway Co., 80 Iowa, 620, 45 N. W. 396;Goodman v. Sapp, 102 N. C. 477, 9 S. E. 483; Bank v. Bridgers (N. C.; 1894) 19 S. E. 666;State v. Kiger (N. C.; 1894) 20 S. E. 456;Chambers v. Greenwood, 68 N. C. 274;State v. Weddington, 103 N. C. 364, 9 S. E. 577;Grubbs v. Insurance Co., 108 N. C. 472, 13 S. E. 236;Gavigan v. Scott, 51 Mich. 373, 16 N. W. 769;Green v. State, 97 Ala. 59, 12 South. 416, and 15 South. 242;Graves v. U. S., 150 U. S. 118, 14 Sup. Ct. 40;Kircher v. Insurance Co., 74 Wis. 470, 43 N. W. 487. In the following cases it has been held that in an action for personal injuries counsel for the defendant may comment upon the omission of the plaintiff to call as a witness the physician who attended him: Evans v. Town of Trenton, 112 Mo. 390, 20 S. W. 614;Bullard v. Railroad Co., 64 N. H. 31, 5 Atl. 838;Cooley v. Foltz, 85 Mich. 47, 48 N. W. 176. In the case of Carpenter v. Railroad Co., 43 N. Y. Supp. 203, 13 App. Div. 328, the court says: “The failure of a party to call as a witness his wife, who had knowledge of the facts, raises a presumption that her testimony would have been injurious to him, since the wife of a party is not equally available as a witness to the adverse party as for the husband. It was not improper, under the foregoing and numerous other decisions that might be cited, to comment upon the absence of this testimony.” It follows that the court erred in giving the instruction, and for this reason the judgment must be reversed.

The following questions were propounded by appellant to Dr. Berkit, a witness in its behalf: “As an expert physician and surgeon, have you noticed the plaintiff walking here in the court room?” “Have you seen him [plaintiff], since that time, walking on the street, and have you seen him for the past few days in the court room, and walking about the court room?” “I will ask you this question, excluding any knowledge or information you obtained while treating the plaintiff, and judging from his appearance, and what you have seen of his walking, and his acting, and his movements,-physical movements of all kinds and character: State to the jury whether or not, in your opinion as a physician and surgeon, he has any paralysis of the left leg.” The questions were based upon facts that had come to the knowledge of the witness after he had quit treating appellee. Objections were sustained to each of these, and the facts that appellant expected to prove in answer thereto were stated. (The objection was sustained to each, and exceptions taken thereto.) These rulings are cited as error. The first and second questions were preliminary, and the court erred in excluding them. The fault of the third question lies in the fact that there was included in it no statement of the facts admitted, or proven, or assumed to be true, on which an opinion could be based. The witness was not asked to state any fact observed by him under the circumstances specified. “It is the well-established rule that an expert witness, in giving his opinion, must fairly state the facts upon which he bases his opinion.” Railway Co. v. Holsapple, 12 Ind. App. 306, 38 N. E. 1107, and authorities there cited. In the statement of what appellant expected to prove in answer to the last question, counsel said that they expected to prove that the witness, “as an expert physician and surgeon, had given close attention to the plaintiff, and especially to his walking, while in the court room, during the progress of the trial; and that, if permitted to answer, he would testify that, in his opinion, plaintiff's left leg was not affected in any way.” This statement amounted only to an expression of the intention to give an opinion, without the statement of the facts upon which it was based. The court did not err in sustaining the objection.

An objection was sustained to the following question, propounded to the same witness, in which appellant claims that the court erred: “Question. I will ask you this question as an expert: If a person claims to be paralyzed in his voice,-his vocal organs,-and exhibits great difficulty in speech, and yet, when becoming excited, would talk off sentence after sentence without any stuttering, or any impediment, would you conclude, as an expert, that he was paralyzed in the voice, or that he was not?” Appellant's counsel stated that they expected to prove, in answer to the question, that the facts stated in the hypothetical question would tend to prove malingering, and that the person is not paralyzed in his voice. It is not claimed that there is any evidence tending to establish the facts assumed, nor does counsel state that...