Cochran v. Gritman

• Decision Date: 23 December 1921
• Citation: 34 Idaho 654,203 P. 289
• Parties: W. J. COCHRAN and MARY M. COCHRAN, His Wife, Respondents, v. CHARLES L. GRITMAN, Appellant
• Court: Idaho Supreme Court

203 P. 289

34 Idaho 654

W. J. COCHRAN and MARY M. COCHRAN, His Wife, Respondents, v. CHARLES L. GRITMAN, Appellant

Supreme Court of Idaho

December 23, 1921

PHYSICIANS AND SURGEONS-MALPRACTICE-NEGLIGENCE-WHEN QUESTION OF FACT - EXAMINATION OF JURORS - MISCONDUCT OF COUNSEL-READING MEDICAL WORKS-NEW TRIAL-CHANCE VERDICT-EXPERT, WITNESSES-HYPOTHETICAL QUESTIONS-WHEN EVIDENCE SUFFICIENT.

1. In an action against a surgeon for negligence, where he is charged with having failed to remove a gauze sponge before closing the incision, following an operation for appendicitis, the question of its removal is one of fact even though it should be conclusively shown that there was a septic condition of the wound, that it healed, and all the medical testimony was to the effect that if the sponge had remained it could not have healed under such conditions.

2. The rule that where oral testimony conflicts with physical facts it should be disregarded does not apply to a case involving a surgical operation, so that it may be said as a matter of law that where a certain result did not follow a given cause such cause could not have existed.

3. In an action against a surgeon for negligence, plaintiffs' counsel asked a juror on his voir dire whether he was a stockholder or interested in any company that insured physicians and surgeons, and upon objection the court instructed counsel that he was not to mention this at all. Held, that the asking of such question was not error.

4. In an action against a surgeon for negligence, where it is claimed that plaintiffs' counsel referred to plaintiffs as being poor people, but upon objection withdrew the remark and also said of the defendant that "he had got a part of his reputation in his hospital, and a part of it is buried in yonder cemetery," held not reversible error where the court admonished the jury to disregard such statements.

5. It is not error for the court to permit counsel in his argument to restate questions asked of expert witnesses, although he read such questions from standard medical books from which they were taken.

6. A new trial will not be granted on the ground of newly discovered evidence where it is shown that the evidence relied upon is largely hearsay, and the person alleged to have made the statements denies that she made them.

7. A verdict should not be set aside on the ground that it was arrived at by chance unless there is a clear showing that it was the result of chance instead of deliberation.

8. An expert medical witness may be examined as to his opinion based upon his knowledge gained from treatment of a patient, where the hypothetical question also includes a history of the case as shown by the evidence, covering the period immediately prior to such treatment.

9. In the examination of expert witnesses upon an issue of fact, the hypothetical questions should be so framed as to fairly reflect the facts admitted or proved, but they need not necessarily include all of the proofs or facts claimed to have been proven by the adversary.

10. It is permitted to ask a question of an expert witness, as such, that cannot be put to an ordinary witness, and it is not an objection that he is asked for an opinion upon a question involving the point to be decided by the jury, although the ultimate fact is always a question for the jury.

11. Evidence examined in this case and held sufficient to support the verdict of the jury.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action for damages for alleged negligence in failing to remove a gauze sponge after an operation for appendicitis. Judgment for plaintiffs and defendant appeals. Affirmed.

Judgment affirmed, with costs to respondents.

Wm. E. Lee, Suppiger & Ogden and E. J. Cannon, for Appellant.

The proof of physical facts that the wound was septic and that a septic wound with a foreign substance could not and would not heal was conclusive. (Chybowski v. Bucyrus, 127 Wis. 332, 106 N.W. 833, 7 L. R. A., N. S., 357; Fleming v. Northern Tissue Paper Co., 135 Wis. 157, 114 N.W. 841, 15 L. R. A., N. S., 701, and many cases cited.)

The court erred in denying defendant's motion for new trial: (a) For misconduct of counsel in questioning Juror Paterson. (Iverson v. McDonnell, 36 Wash. 73, 78 P. 202; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 P. 431; Stratton v. C. H. Nichols Lumber Co., 39 Wash. 323, 109 Am. St. 881, 81 P. 831; Wildrick v. Moore, 66 Hun, 630, 22 N.Y.S. 1119; Cosselmon v. Dunfee, 172 N.Y. 507, 65 N.E. 494; Sawyer v. J. M. Arnold Shoe Co., 90 Me. 369, 38 A. 333.

(b) For misconduct of counsel in calling the jury's attention to the fact that plaintiffs were poor. (Washington-Va. R. Co. v. Deahl, 126 Va. 141, 100 S.E. 840; Monmouth Mining & Mfg. Co. v. Erling, 148 Ill. 521, 39 Am. St. 187, 36 N.E. 117; Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842, 39 S.E. 551, 61 L. R. A. 513; Hundley v. Chadick, 109 Ala. 575, 19 So. 845; Greenfield v. Kennett, 69 N.H. 419, 45 A. 233.)

(c) In insinuating that many of defendant's patients were in the cemetery. (Louisville etc. Ry. Co. v. Sparks, 12 Ind.App. 410, 40 N.E. 546; Baxter v. Krainik, 126 Wis. 421, 105 N.W. 803; Kinnaman v. Kinnaman, 71 Ind. 417; Mainard v. Reider, 2 Ind.App. 115, 28 N.E. 196; Huckell v. McCoy, 38 Kan. 53, 15 P. 870; Greenfield v. Kennett, supra; Taylor v. Spokane P. & S. R. Co., 72 Wash. 378, 130 P. 506.

(d) For misconduct of plaintiffs' counsel in reading from the medical authorities.

The court erred in refusing to grant a new trial on the ground of newly discovered evidence. (Twin Springs Placer Co. v. Upper Boise etc. Min. Co., 6 Idaho 687, 59 P. 535.)

The verdict was arrived at by chance and through improper methods. (Flood v. McClure, 3 Idaho 587, 32 P. 254; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Wright v. Union Pacific Ry. Co., 22 Utah 338, 62 P. 317.)

The answers to the hypothetical questions asked of Dr. Matthews should have been excluded. (Illinois Cent. R. Co. v. Smith, 208 Ill. 608, 70 N.E. 628; Travis v. Louisville & N. R. Co., 183 Ala. 415, 62 So. 851; Chicago City Ry. Co. v. Sugar, 117 Ill.App. 578; City of Centralia v. Ayres, 133 Ill.App. 290; Chicago City Ry. Co. v. Soszynski, 134 Ill.App. 149; Sachra v. Manilla, 120 Iowa 562, 95 N.W. 198; Martin v. Des Moines Edison Light Co., 131 Iowa 724, 106 N.W. 359; Strever v. Woodard, 160 Iowa 332, 141 N.W. 931, 46 L. R. A., N. S., 644; Chicago, R. I. & P. Ry. Co. v. Sheldon, 6 Kan. App. 347, 51 P. 808; United Rys. & Electric Co. v. Corbin, 109 Md. 442, 72 A. 606; Smart v. Kansas City, 208 Mo. 162, 123 Am. St. 415, 13 Ann. Cas. 932, 105 S.W. 709, 14 L. R. A., N. S., 565; State v. Hyde, 234 Mo. 200, Ann. Cas. 1912D, 191, 136 S.W. 316.)

G. C. Hoyt and A. H. Oversmith, for Respondents.

Counsel for respondents were entitled to know if any member of the jury was a stockholder in an indemnity insurance company. ( Baldarachi v. Leach, 44 Cal.App. 603, 186 P. 1060; Samuels v. Willis, 133 Ky. 459, 19 Ann. Cas. 188, 118 S.W. 339; De Liere v. Goldberg, Bowen & Co., 30 Cal.App. 612, 159 P. 197; Blair v. M. McCormack Const. Co. 195 N.Y. 520, 88 N.E. 1114; Rinklin v. Acker, 125 A.D. 244, 109 N.Y.S. 125; Norris v. Holt-Morgan Mills, 154 N.C. 474, 70 S.E. 912; Wilson v. St. Joe Boom Co., ante, p. 253, 200 P. 884.)

Remarks of counsel in argument are not grounds for reversal unless opposing counsel asks the court to admonish the jury. ( Big Ledge Copper Co. v. Dedrick, 21 Ariz. 129, 185 P. 825; 3 C. J., pars. 863 and 864, and cases cited; Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Watts v. Spokane P. & S. Ry. Co., 88 Ore. 192, 171 P. 901.)

The knowledge of expert witnesses may be tested upon cross-examination by reading to them extracts from standard authorities. (Osborn v. Cary, 28 Idaho 89, 152 P. 473, and cases cited; State v. Brunette, 28 N.D. 539, Ann. Cas. 1916E, 340, 150 N.W. 271.)

Counsel in his argument may read to the jury a transcript of stenographer's notes, hence no error can be predicated on reading from medical authorities where the same were used on cross-examination. (38 Cyc. 1483, 1484; Pinkus v. Pittsburg etc. Ry. Co., 65 Ind.App. 38, 114 N.E. 36.)

The verdict was not a quotient or chance verdict. (Sales v. Maupin, 35 S.D. 176, Ann. Cas. 1917C, 1222, 151 N.W. 427; Newman v. Great Shoshone etc. Power Co., 28 Idaho 764, 156 P. 111; 29 Cyc. 812; St. Louis & San Francisco Ry. Co. v. Brown, 45 Okla. 143, 144 P. 1075; Florence etc. R. Co. v. Kerr, 59 Colo. 539, 151 P. 439; Loy v. Northern P. Ry. Co., 77 Wash. 25, 137 P. 446; Wiles v. Northern P. Ry. Co., 66 Wash. 337, 119 P. 810.)

The answers of Dr. Matthews to hypothetical questions were properly admitted as evidence by the court. (McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, Ann. Cas. 1918A, 380, 156 P. 115; Jones v. City of Caldwell, 20 Idaho 5, 48 L. R. A., N. S., 119, 116 P. 110; Tyson Creek R. R. Co. v. Empire Mill Co., 31 Idaho 580, 174 P. 1004.)

Answer to hypothetical question which does not include all of the facts is not objectionable; facts not given in question may be brought out in cross-examination. (Seckinger v. Philibert & J. Mfg. Co., 129 Mo. 590, 31 S.W. 957.)

Whenever there is substantial evidence to support a verdict the same shall not be set aside. (Sec. 7170, C. S.; Dangel v. Levy, 1 Idaho 722; Lamb v. Licey, 16 Idaho 664, 102 P. 378; Wolfe v. Ridley, 17 Idaho 173, 20 Ann. Cas. 39, 104 P. 1014; Seawell v. Pacific etc. Ry. Co., 21 Idaho 277, 121 P. 556; Davidson Grocery Co. v. Johnston, 24 Idaho 336, Ann. Cas. 1915C, 1129, 133 P. 929; Richardson v. Bohney, 26 Idaho 35, 140 P. 1106; McAlinden v. St. Maries Hospital Assn., supra.)

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

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