Davis v. Dunn

• Decision Date: 06 May 1916
• Citation: 98 A. 81
• Parties: DAVIS v. DUNN.
• Court: Vermont Supreme Court

98 A. 81

DAVIS

v. DUNN.

Supreme Court of Vermont. Brattleboro.

May 6, 1916.

Exceptions from Windham County Court; E. L. Waterman, Judge.

Action by Hester A. Davis against S. Farrar Dunn. Judgment for defendant, and plaintiff excepts. Reversed and remanded.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Gibson & Daley, of Brattleboro, for plaintiff. O. E. Butterfield, of Wilmington, and Chase & Chase and A. F. Schwenk, all of Brattleboro, for defendant.

WATSON, J. This case was tried by the court. The findings of fact were filed, judgment was rendered for the defendant, and exceptions to the judgment were filed, all on the same day, November 30, 1914. Later an amended bill of exceptions was filed, and finally, on January 3, 1916, a substitute bill was filed. In the last-named bill, the transcript of the evidence is referred to in respect to the exceptions taken during the trial, and is made a part thereof for that purpose, "and shall control according to rule 31, section 2, of the (new) county court rules. It is made the bill of exceptions in this case, in respect to the exceptions taken during the trial, in substitution of any bill of exceptions on file." Notwithstanding the case was tried and determined in the court below before the present rules of the county courts went into effect, we treat the reference to rule 31, section 2, as treated by both sides in argument, as properly made. By that rule and section bills of exceptions shall refer to the transcript of the evidence and make the same controlling, "except in cases in which the parties otherwise agree or the presiding judge otherwise directs." Here the presiding judge otherwise directed to the extent of referring thereto only for the specific purpose named, and we confine our use of it accordingly.

It is said that there are rules adopted by the Windham county bar for the purpose of expediting the trial of causes, and that these rules have the approval of the superior judges. Of those rules No. 5 reads:

"The court is requested to direct that all cases of objection and exception shall be noted as a matter of course and without request or direction therefor except where the court shall distinctly rule as a matter of discretion, in which case an exception, if one is claimed, shall be specifically noted."

The plaintiff claims to have proceeded under this rule in saving her exceptions during the trial. Defendant calls our attention to one of the regular county court rules that no exception lies without a ruling by the court. It becomes necessary, therefore, to consider the force of rules before taking up the questions claimed to have been saved by the plaintiff. By P. S. 1346:

"The superior judges shall make all necessary rules for the orderly practice in the county courts and courts of chancery, which rules shall be uniform."

A rule made by the superior judges, within the authorization of this statute, until amended or superseded, has the force of law, and while it stands it is binding and must be applied to all cases that come within it (Taft v. Taft, 82 Vt. 64, 71 Atl. 831; Commercial Jewelry Co. v. Dente, 83 Vt. 350, 75 Atl. 962), except that by rule 52, in force when this case was tried, in exceptional cases, to prevent a failure of justice, a county court, the presiding judge, or a superior judge when it is for him to act alone may take a case out of the general rules.

By rule 28 (then in force), paragraph 2: "No exception shall be allowed unless the point relied upon was presented to and exception noted by the court at the time of making the decision excepted to, if a decision of the court, and, if to the charge, before the jury retires."

This being one of the general rules of the county courts, and uniform, made under the provisions of the statute quoted above, it cannot be affected in its provisions or operations by any local rule or rules of any particular county. Local rules operating in a single county are not in conformity with the statute that the "rules shall be uniform." So far, therefore, as the exceptions are concerned, we must be controlled by the general rules of the county courts, and not by the local rules of the county.

We will consider the points made in plaintiff's brief in their order.

I. It appeared that the plaintiff and the defendant reside in the village of Wilmington, this state, the latter being a practicing physician having an office there; that in March, 1914, the plaintiff slipped on some ice, fell, and injured her right arm at the wrist. In putting in her opening case the plaintiff called the defendant to testify, and examined him at considerable length as to her coming to see him at the time of her accident, his examination of her injured arm, the condition in which he found it, his treatment of it, the number of times he saw her respecting it, who were present, etc. During such examination, the plaintiff's attorney showed defendant an X-ray plate marked "Plaintiff's Exhibit 1," and asked him to examine it, particularly the right hand. Having done so, the defendant was asked whether he discovered anything wrong with the bones in the right hand shown on the plate. Objection being made on the ground that there was no evidence showing what or whose hand it was, or anything about it, plaintiff's attorney offered to show that one of the bones in the right arm, as represented on the plate, had been fractured; that the photograph shows a fractured bone of the right arm. The court ruled that at that stage of the case the defendant need not answer the question, because the plate had not been identified, and there had been no offer to show that it was a plate of the plaintiff's arm or wrist. To this ruling an exception was allowed the plaintiff. The record shows no other exception by the plaintiff during such examination of the defendant. It is said to have been error not to allow the plaintiff an opportunity to examine the defendant as she sought to do; that by the statute (P. S. 1596) she had a right to examine him under the rules applicable to the cross-examination of witnesses. It is true that she had the right to call the defendant to testify as a witness in her behalf, in the same manner and subject to the same rules as other witnesses, and therein could examine him under the rules applicable to the cross-examination of witnesses. Good v. Knox, 64 Vt. 97, 23 Atl. 520. But the rules governing the examination of other witnesses did not give the right to examine respecting the contents of the X-ray photograph until the photograph had been properly verified or authenticated by some evidence other than itself. 10 R. C. L. § 360; Johnson v. Bolton, 43 Vt. 303. Until then the photograph stood, as it were, in a position collateral to any issue in the case, and could not be admitted in evidence, nor, except as it might have a bearing on the question of identity, could witnesses be questioned respecting what is shown thereby. In re Barney's Will, 71 Vt. 217, 44 Atl. 75.

II. The plaintiff introduced evidence tending to show that at the time of her injury she went as quickly as she could to the defendant's office, which was 25 or 30 rods away; that the defendant gave her arm immediate attention; that he examined her wrist, rubbed on some iodine and arnica, and then put on splints and a bandage; that she told him she was afraid the wrist was broken, but after examining it he said he was sure it was not broken, but was badly sprained; that she saw him the next morning, and he then took the bandage off and examined the wrist as before, again applying splints in dressing it; that she then told him she was afraid there was something wrong about it, that it was something more than a sprain, but he said when it got stronger it would be all right, and that he was sure it was not a break, but was a bad sprain; that she saw him quite a number of times afterwards at his office, each of which times he made about the same examination of the arm, taking off the bandage; that defendant treated it about three weeks, but, as her arm did not seem to improve, she then (on April 13th) called in Dr. Page, of Wilmington, to see it; that on examination he found a very pronounced unreduced Colle's fracture, and he took her at once to the North Adams Hospital; that on arrival there she was sent to the X-ray room, and a plate was made of her wrist; that the examination of her wrist at the hospital showed that she was suffering from a Colle's fracture of two or three weeks' standing; that she was then anæsthetized, and Dr. Page, assisted by Dr. Bushnell and a nurse, reduced the fracture; that the plaintiff came back from the hospital with Dr. Page the next morning, and has since been under his treatment. The plaintiff testified that an X-ray picture of her arm was taken at the hospital. Dr. Page testified that he caused such a picture of her hands to be there taken; that he requested Dr. John Hewitt to make the plate, saw the plaintiff go into the X-ray room, and the same day, April 13th, Dr. Hewitt delivered to him the plate marked "Plaintiff's Exhibit 1"; that he did not see this picture taken or developed; that at the time of the trial of this case Dr. Hewitt was supposed to be in the English army.

Dr. Robert J. Carpenter, of North Adams, a physician connected with the hospital at that place, called as a witness by the plaintiff, testified to having had more than a year's experience in taking and developing X-ray photographs; that on October 29, 1914, he took and developed X-ray plates of the plaintiff's two hands, which plates (introduced in evidence) are marked, one as "Plaintiff's No. 2," and the other as "Plaintiff's No. 3," the latter being taken with the palms down, and the former with the palms up; that in No. 3, "on the thumb of the right hand, on the proximal phalange, the distal end, is a small indentation" shown, and the same thing is shown in No. 2; that this condition is not seen on the left hand...