Dowd v. McGinnity
| Citation | 152 N.W. 524,30 N.D. 308 |
| Decision Date | 05 April 1915 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Williams County, Crawford, J Affirmed.
Affirmed.
E. R Sinkler, for appellant.
Where the erroneous and incompetent evidence is grossly prejudicial, its withdrawal by the court, after having been received over objection, does not cure the error. Wojtylak v. Kansas & T. Coal Co., 188 Mo. 260, 87 S.W. 506; Manzer v. Phillips, 139 Mich. 61, 102 N.W 292; Roydan v. Heberstumpf, 129 Mich. 137, 88 N.W. 386.
And where the evidence so admitted creates such a strong impression on the minds of the jury that its subsequent withdrawal will not remove effect caused by its admission, the original objection may be available on motion for new trial, or on appeal. Tourtelotte v. Brown, 4 Colo.App. 377, 36 P. 73; Taylor v. Adams, 58 Mich. 187, 24 N.W. 864; Glascock v. Chicago & A. R. Co., 69 Mo. 589; Meyer v. Lewis, 43 Mo.App. 417; Cobb v. Griffith & A. S. G. & Transp. Co., 12 Mo.App. 130; Mueller v. Weitz, 56 Mo.App. 36; Nelson v. Spears, 16 Mont. 351, 40 P. 786; Wisconsin State Bank v. Dutton, 11 Wis. 372.
The question, "is a person in the condition that the testimony of Doctor Stabey shows, and in the condition as shown by your own observation, in a condition to perform mental and physical labor, is not a proper hypothetical question, and is wholly incompetent, and does not assume the truth of the testimony of the witness mentioned, and does not seek the opinion of the witness on the stand, upon any specific state of facts: That it invades the province of the jury. Re Barber's Appeal, 63 Conn. 393, 22 L.R.A. 90, 27 A. 973; Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389, 4 N.E. 908; Stoddard v. Winchester, 157 Mass. 567, 32 N.E. 948; Elliott v. Russell, 92 Ind. 526; Chicago, R. I. & P. R. Co. v. Moffitt, 75 Ill. 524; Burns v. Barenfield, 84 Ind. 43; McCarthy v. Boston Duck Co., 165 Mass. 165, 42 N.E. 568; Getchell v. Hill, 21 Minn. 464; State v. Lautenschlager, 22 Minn. 514; Jones v. Chicago, St. P. M. & O. R. Co., 43 Minn. 279, 45 N.W. 444; Carpenter v. Blake, 2 Lans. 206; Link v. Sheldon, 136 N.Y. 1, 32 N.E. 696; Armendaiz v. Stillman, 67 Tex. 458, 3 S.W. 678; Luning v. State, 2 Pinney (Wis.) 215, 52 Am. Dec. 153; Henry v. Hall, 13 Ill.App. 343; Rush v. Megee, 36 Ind. 69; Woodbury v. Obear, 7 Gray, 467; Reynolds v. Robinson, 64 N.Y. 589; Hagadorn v. Connecticut Mut. Ins. Co., 22 Hun, 249; Gregory v. New York, L. E. & W. R. Co., 55 Hun, 303, 8 N.Y.S. 525; Re Snelling, 136 N.Y. 515, 32 N.E. 1006; Gottlieb v. Hartman, 3 Colo. 53; Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47, 75 N.E. 436, 19 Am. Neg. Rep. 145; Keyes-Marshall Bros. Livery Co. v. St. Louis & H. R. Co., 105 Mo.App. 556, 80 S.W. 53; Bedford Belt R. Co. v. Palmer, 16 Ind.App. 17, 44 N.E. 686; Crozier v. Minneapolis Street R. Co., 106 Minn. 77, 118 N.W. 256; Williams v. State, 64 Md. 384, 1 A. 887, 5 Am. Crim. Rep. 512; People v. Millard, 53 Mich. 63, 18 N.W. 562; State v. Scott, 41 Minn. 365, 43 N.W. 62; People v. McElvaine, 121 N.Y. 250, 18 Am. St. Rep. 820, 24 N.E. 465; State v. Coleman, 20 S.C. 441; Bennett v. State, 57 Wis. 69, 46 Am. Rep. 26, 14 N.W. 912; People v. Vanderhoof, 71 Mich. 158, 39 N.W. 28; People v. Aikin, 66 Mich. 460, 11 Am. St. Rep. 512, 33 N.W. 828, 7 Am. Crim. Rep. 345; State v. Maier, 36 W.Va. 757, 15 S.E. 991; 1 Wigmore, Ev. § 681.
The testimony of the other witnesses to which reference is made in such a question must be assumed to be true. Bennett v. State, 57 Wis. 69, 46 Am. Rep. 26, 14 N.W. 918; People v. Lake, 12 N.Y. 362; People v. Aikin, 66 Mich. 460, 11 Am. St. Rep. 512, 33 N.W. 828, 7 Am. Crim. Rep. 345; Porter v. State, 135 Ala. 51, 33 So. 695; Gunter v. State, 83 Ala. 96, 3 So. 605; Page v. State, 61 Ala. 16; People v. McElvaine, 121 N.Y. 250, 18 Am. St. Rep. 820, 24 N.E. 465; Reynolds v. Robinson, 64 N.Y. 595; Guiterman v. Liverpool, N.Y. & P. S. S. Co., 83 N.Y. 358; Luning v. State, 2 Pinney (Wis.) 215, 52 Am. Dec. 154; People v. Millard, 53 Mich. 63, 18 N.W. 562; French v. Wilkinson, 93 Mich. 322, 53 N.W. 530, 1 Am. Neg. Cas. 146.
The court erred in permitting evidence to be offered that defendant had been arrested and convicted of crime, and striking it out later on did not cure the error. Caverno v. Jones, 61 N.H. 623.
Where it is asserted that a person is simulating mental incompetency, the wildest latitude will be allowed in establishing facts that will disprove such state or condition. Nash v. Hunt, 116 Mass. 237; McCoy v. Jordan, 184 Mass. 575, 69 N.E. 358; Hewitt v. John Week Lumber Co., 77 Wis. 548, 46 N.W. 822.
A nonexpert witness cannot testify as to any apparent change in the intelligence or mutual capacity of the person being investigated. Clark v. Clark, 168 Mass. 523, 47 N.E. 510; Bridge v. Oshkosh, 71 Wis. 363, 37 N.W. 409.
A physician cannot testify to what his patient told him as to his past condition or symptoms. This does not relate to a present state of facts. Such evidence is incompetent and highly prejudicial. State v. Dart, 29 Conn. 153, 76 Am. Dec. 596; Rowland v. Philadelphia, W. & B. R. Co., 63 Conn. 415, 28 A. 102; People v. Foglesong, 116 Mich. 556, 74 N.W. 733; Bacon v. Charlton, 7 Cush. 586; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 543, 31 Am. Rep. 321; Lacas v. Detroit City R. Co., 92 Mich. 412, 52 N.W. 745; Johnson v. McKee, 27 Mich. 473; Bennett v. Northern P. Co., 2 N.D. 127, 13 L.R.A. 465, 49 N.W. 408.
A new trial will be granted on newly discovered evidence, even though such evidence is cumulative. Hart v. Brainerd, 68 Conn. 50, 35 A. 776; Anderson v. State, 43 Conn. 514, 21 Am. Rep. 669; Keet v. Mason, 167 Mass. 154, 45 N.E. 81; Preston v. Otey, 88 Va. 491, 14 S.E. 68; Ellis v. Ginsburg, 163 Mass. 143, 39 N.E. 800; Kochel v. Bartlett, 88 Ind. 237; Mercer v. King, 19 Ky. L. Rep. 781, 42 S.W. 106; State v. Stowe, 3 Wash. 206, 14 L.R.A. 609, 28 P. 337; Smythe v. State, 17 Tex.App. 244.
Positive and uncontradicted testimony, not inherently improbable, is prima facie evidence of the fact which it seeks to establish, and, as against a mere suspicion of its falsity, justifies a directed verdict, since the jury are not at liberty to disregard the testimony. Brown v. Petersen, 25 App. D. C. 359, 4 Ann. Cas. 980; Crane v. Morris, 6 Pet. 598, 8 L. ed. 514; United States v. Wiggins, 14 Pet. 334, 10 L. ed. 481; Quock Ting v. United States, 140 U.S. 417, 35 L. ed. 501, 11 S.Ct. 733, 851; Kelly v. Burroughs, 102 N.Y. 93, 6 N.E. 109; Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102.
Cowan & Adamson and H. S. Blood, for respondent.
Doctor LeBarge qualified as a medical expert. He had heard all of Doctor Stabey's testimony. He had known plaintiff well prior to the injury. He was asked to state, from all of the testimony including that of Doctor Stabey, and from his own observations, if a complete recovery was probable. Such testimony was competent. Walters v. Rock, 18 N.D. 45, 115 N.W. 511.
Plaintiff's questions to the arrest and conviction of defendant on a charge of assault and battery were not properly objected to, to avail defendant here. The general objection is of no avail. First Nat. Bank v. Warner, 17 N.D. 76, 114 N.W. 1085, 17 Ann. Cas. 213; Kolka v. Jones, 6 N.D. 461, 66 Am. St. Rep. 615, 71 N.W. 558.
The questions were proper, in any event. Blackburn v. Minter, 22 Ala. 613.
If such evidence was improperly admitted, it did not prejudice the defendant, as it would operate in mitigation of damages if it had any effect at all. Sometimes in such cases the defendant himself seeks to show conviction, sentence, and the imposition of a fine in mitigation of damages. Phillips v. Kelly, 29 Ala. 628; Bundy v. Maginess, 76 Cal. 532, 18 P. 668; Reddin v. Gates, 52 Iowa 210, 2 N.W. 1079; Corwin v. Walton, 18 Mo. 71, 59 Am. Dec. 285; Wolff v. Cohen, 8 Rich. L. 144; Hoadley v. Watson, 45 Vt. 289, 12 Am. Rep. 197; Smithwick v. Ward, 52 N. C. (7 Jones, L.) 64; Jackson v. Wells, 13 Tex. Civ. App. 275, 35 S.W. 528.
A nonexpert witness may testify as to observations made by him of a person's mental or physical condition, without first relating the facts upon which his opinion is based. State v. Barry, 11 N.D. 441, 92 N.W. 809; Moore v. Spier, 80 Ala. 129; Atkins v. State, 119 Tenn. 458, 13 L.R.A. (N.S.) 1031, 105 S.W. 353; Ryder v. State, 38 L.R.A. 721, and brief, 100 Ga. 528, 62 Am. St. Rep. 334, 28 S.E. 246; Auld v. Cathro, 20 N.D. 461, 32 L.R.A. (N.S.) 71, 128 N.W. 1025, Ann. Cas. 1913A, 90.
This is an action for damages alleged to have been sustained by reason of an assault and battery. Plaintiff recovered judgment in lower court for $ 6,550 damages, with interest. Defendant appeals, assigning thirty-four errors of law relating to the admission and rejection of testimony; that the evidence is insufficient to justify the verdict, and the further grounds that the court erred in refusing to allow him a new trial upon showing of newly discovered evidence. He has grouped his assignments under eleven points in his brief, and we will discuss the same in the order selected by him.
(1) In support of the damages alleged to have been sustained plaintiff offered in evidence the deposition of a Dr. Judd, of Rochester, Minnesota, who testified that he had examined the records of St. Mary's Hospital at that place to refresh his memory, and that the same showed that Mr. Dowd had a systolic cardiac murmur. When the deposition was read, the objection was made that the doctor had not testified from his own recollection independently, nor after refreshing his memory so that he was able thereafter to testify of his own knowledge, and that therefore the testimony was based entirely...
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