Dowd v. McGinnity
| Citation | 30 N.D. 308,152 N.W. 524 |
| Parties | DOWD v. McGINNITY. |
| Decision Date | 05 April 1915 |
| Court | United States State Supreme Court of North Dakota |
Action for damages for assault and battery. Plaintiff had judgment for $6,550 and interest. Defendant appeals.
Certain questions asked of one Dr. Judd, whose testimony had been taken up by deposition, were objected to when such deposition was offered in evidence. The better practice is to offer the objection at the time the witness gives the testimony. In this case, it is difficult to tell from the record what part of the doctor's testimony was in evidence at the time the objections were taken, and it is therefore difficult to review the trial court's rulings. No error, however, appears from the record which we have before us.
Dr. La Barge was asked for an opinion based upon the testimony of another witness, whom he had heard testify. After objection that the truth of such doctor's testimony was not assumed, the trial court said: The Court: This ruling was heard by the witness and became part of the original question. Later the trial court struck out the doctor's testimony relative to this matter. If there was any error, the same was thereby cured.
While the defendant was upon the stand, and being cross-examined, he was asked whether or not he had been arrested and convicted in a criminal action for assault and battery relative to those same facts. The objection was overruled, and witness replied that he had been. Later the trial court stated that he would entertain a motion to strike out such testimony, and, upon motion of the defendant, the same was stricken out, and the jury admonished to disregard the same. This cured any error.
One Reiser, witness for defendant, was asked certain questions relative to plaintiff's mental condition. Some were properly excluded because the witness had not shown himself competent to testify.
Defendant's witness Hankey failed to show sufficient foundation for his testimony as to plaintiff's mental condition, and the questions quoted in the opinion were properly excluded.
The court struck out the testimony given by defendant's witness Spangerud, relative to plaintiff's mental condition, after the witness had admitted that he had not observed plaintiff's condition.
The question asked of defendant's witness Rock was properly excluded, being unfair.
Dr. Stobey gave testimony relative to plaintiff's mental and physical condition. Held, that the witness' opinion was based upon his personal examination, and not upon statements made to him by the plaintiff, and therefore was not hearsay.
One of defendant's witnesses was asked as to plaintiff's ability to sign his name in the spring of 1911. Witness had not observed plaintiff sufficiently to testify as to his mental condition, and, if the question was asked for any other purpose, it was immaterial.
Evidence examined, and held sufficient to sustain the verdict in the sum found by the jury.
A motion for a new trial, based upon the affidavit of a witness, who turned away as soon as she realized there was going to be a fight, was properly denied by the trial court.
Appeal from District Court, Williams County; Crawford, Judge.
Action by M. B. Dowd against L. A. McGinnity. From a judgment for plaintiff, defendant appeals. Affirmed.
E. R. Sinkler, of Minot, for appellant. Cowan & Adamson and H. S. Blood, all of Devils Lake, for respondent.
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 34 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 11 points in his brief, and we will discuss the same in the order selected by him.
[1] 1. In support of the damages alleged to have been sustained, plaintiff offered in evidence the deposition of a Dr. Judd, of Rochester, Minn., 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 upon the written records of the hospital, which may have been made by other persons. It is difficult to tell, from the printed abstract,whether or not such was admissible. The objections to the deposition, as a whole, were not made in writing and filed prior to the trial, as provided in section 7906, C. L. 1913, but were made orally at the time such deposition was offered in evidence and to specific questions. This is a very unsatisfactory procedure, and leaves this court in doubt as to the state of the evidence when the rulings were made. This is the entire record:
This is all of the record concerning Dr. Judd's testimony that is presented to us in the settled statement of the case. Instead of making the objection at the time the doctor was being examined, thus allowing the plaintiff to supply any inadvertent omissions, such objection was offered at a time when the correction could not possibly be made. We are unable to see any prejudicial error in this incident.
[2] 2. Dr. La Barge was called as a witness for plaintiff, and was asked this question:
This question was objected to on the ground that it was not a proper question, based upon the opinion of another witness without assuming the truth thereof.
The Court:
And it further appears that after cross-examination, and the doctor had testified that he differed with Dr. Stobey as to the result of the injury, the court struck out his evidence and cautioned the jury as follows:
“The court instructs you that, when the evidence he gave is stricken out, it is not to be considered.”
It is doubtful whether any error occurred in the admissions of the testimony in the first place, but, if there were, it was cured by the later ruling and the cautionary instructions to the jury. Appellant has devoted many pages of his brief to the conceded proposition that a witness may not give his opinion, based on the testimony of other witnesses, without assuming such testimony to be true. In view of the fact that in this instance the court only admitted the testimony upon the assumption, as stated by him and heard by the doctor, that such evidence was true, such authorities become immaterial. Other questions, to which objections were made, were not answered by the witness and no error, therefore, can be predicated. Again, Dr. La Barge was asked to state from all of the testimony, including that of Dr. Stobey, and from his own observation, if a complete recovery of the plaintiff was probable, and he answered, “Not probable.” This question and answer occurred after the statement of the trial court that he would only admit such testimony if it assumed the truth of the previous testimony, and was likewise stricken out by the court after cross-examination of the witness. Respondent relies upon Walters v. Rock, 18 N. D. 45, 115 N. W. 511, to show that the question was proper, because the testimony of Dr. Stobey was not disputed. The question is also treated in Kersten v. Great Northern Ry. Co., 28 N. D. ---, 147 N. W. 787. In view of all of the facts, it is apparent that no reversible error can be predicated upon this ruling.
[3] 3. While the defendant was upon the stand in his own behalf, and being cross-examined by plaintiff's attorney, he was asked whether or not he had been arrested and convicted in a criminal action for assault and battery relative to those same facts. This testimony was admitted over objection, and defendant replied that he had been. The objection was that the evidence was incompetent, irrelevant, and immaterial. This did not point out to the trial court the particulars in which the question was considered objectionable. Whether or not this alone would justify the trial court in overruling the same, we need not discuss. For a correct statement of this rule, see the recent case of Huston v. Johnson, 151 N. W. 774;...
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...See, also, Atlanta, etc., Co. v. McManus, 58 S. E. 258, 1 Ga. App. 302; Ettien v. Drum, 101 P. 151, 39 Mont. 34; Dowd v. McGinnity, 152 N. W. 524, 30 N. D. 308. The Court of Civil Appeals did not decide the other questions presented, but intimated its opinion upon some of them. In view of o......