Dashiell v. Griffith

• Citation: 35 A. 1094,84 Md. 363
• Parties: DASHIELL v. GRIFFITH ET UX.
• Decision Date: 03 December 1896
• Court: Maryland Court of Appeals

35 A. 1094

84 Md. 363

DASHIELL v. GRIFFITH ET UX.

Court of Appeals of Maryland

December 3, 1896

Appeal from Baltimore city court.

Action by George R. Griffith and wife against Nicholas L. Dashiell. Judgment for plaintiffs. Defendant appeals. Reversed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, FOWLER, ROBERTS and BOYD, JJ.

Edgar H. Gans and B. H. Haman, for appellant.

E. C Eichelberger and W. H. DeC. Wright, for appellees.

ROBERTS J.

This appeal is from the judgment of the Baltimore city court. The facts are that Mrs. Griffith, one of the plaintiffs, and wife of the other, was suffering from a disease commonly known as "bone felon," which was upon the index finger of her right hand. She visited the office of the defendant, a practicing physician, for the purpose of obtaining his professional assistance. He gave the plaintiff medical attention, as hereinafter stated. This action is brought by plaintiffs jointly, as husband and wife, to recover damages for the alleged negligence of the defendant in the treatment of the plaintiff, in consequence of which, it is claimed, the wife was obliged to have a portion of her finger amputated. In the progress of the trial in the court below the defendant reserved two exceptions, the first of which relates to the admissibility of certain proof; the other, to the refusal by the court to grant the defendant's first prayer. We will consider the exceptions in the order in which they appear in the record.

The plaintiffs proved by Mrs. La Rose that she had nursed the plaintiff in her sickness while suffering with the bone felon, and went to her as nurse on the 17th of February 1895, which was the day the finger was lanced by the defendant; that the incision made in the finger was a little over a quarter of an inch in length upon the surface; and then witness proceeded to say, "When an incision is deep, it always lays open." This statement was objected to by the defendant on the ground that such testimony was not legally admissible, unless it be shown that witness was an expert, and competent to testify in that character. For the purpose of ascertaining whether the witness was qualified to speak as an expert, she was asked "how many cases of bone felon she had nursed, when the diseased part has been lanced or opened." She replied "that she might have nursed twenty or thirty cases." She added "that she thought she had sufficient knowledge to give an opinion as to the depth of an incision from the size of the opening." To the competency of the witness to testify as an expert upon the question of the depth of the incision from the size of the opening the defendant objected, but the court overruled the objection, and permitted the witness to testify as an expert. The question presented by this exception is, we think, free from serious difficulty. The nurse who testified in this case had no other qualification entitling her to speak as an expert than that she had nursed 20 or 30 cases of bone felon where opening or lancing had been resorted to, and from the experience gained thereby she thought she had sufficient knowledge to enable her to say as an expert "that, in her opinion, the finger was not cut half way to the bone." This wound did not "lay open," and there is nothing in the testimony which shows that she probed the wound, or gave to it any internal examination. She simply said that it was not open at its surface, and then indulged in the merest speculation as to its depth. It seems to us that, if she had been a thoroughly skilled and competent expert, she would, under the existing circumstances of this case, have hesitated to express an opinion as to the depth of the incision made by the defendant. It is an unsafe practice, in the admission of testimony, to allow witnesses to speak as experts unless the court is well satisfied that they possess the requisite qualifications; not alone on this account, but the effect of such testimony is most difficult to estimate, from the fact that undue importance not infrequently attaches to it, and gives to it an influence upon the minds of a jury to which it is not fairly or reasonably entitled. An eminent author upon the law of evidence quotes with approval the language of Lord Campbell in the Tracy Peerage Case, 10 Clark & F. 191, that "skilled witnesses come with such a bias on their minds to support the cause in which they are embarked that hardly any weight should be given to their evidence." 1 Tayl. Ev. § 58. While there is undoubtedly much truth in the observations of Mr. Taylor just quoted, we must not, however, be understood as intimating that there are not many cases to be found in which expert testimony has rendered valuable assistance in the solution of difficult and important questions arising in the courts for determination. Mr. Wharton, commenting upon the same subject, says that the true distinction between the expert and the nonexpert is "that the nonexpert testifies as to conclusions which may be verified by the adjudicating tribunal; the expert to conclusions which cannot be so verified. The nonexpert gives the results of a process of reasoning familiar to every-day life; the expert gives the results of a process of reasoning which can be mastered only by special scientists." 1 Whart. Ev. § 434. There is no evidence in the record which shows that Mrs. La Rose ever studied medicine, or ever before had been called upon to investigate or inquire into the subject of the depth of incisions, judged solely by their surface indications. The mere fact that she had nursed 20 or 30 cases of bone felon, without showing that she was possessed of any peculiar skill or knowledge in estimating the depth of incisions of like character with the one in question here, did not qualify her to speak as an expert, and we think there was manifest error in allowing her to do so. The rule allowing expert evidence will, in our opinion, be less objectionable, and more conducive to justice, if it be somewhat restricted, rather than relaxed. It is largely within the discretion of the trial judge, but always subject to the opinion of the appellate court. Baron De Bode's Case, 8 Q. B. 250-267; Di Sora v. Phillipps, 10 H. L. Cas. 624; Castrique v. Imrie, L. R. 4 H. L. 434. We have, therefore, not hesitated to express our views upon the admissibility of such evidence, believing it to be properly reviewable by this court.

The second exception arises from the refusal of the court to grant the defendant's first prayer. As already stated this action is brought in the names of the husband and wife jointly; and, if recovery is sought for the commission of an alleged tort against the wife only, the action is proper in form. Railway...