Evans v. Bannock County

• Decision Date: 07 October 1938
• Docket Number: 6567
• Parties: D. R. EVANS, Appellant, v. BANNOCK COUNTY, a Body Politic and Corporate, D. C. RAY and W. F. HOWARD, Respondents
• Court: Idaho Supreme Court

83 P.2d 427

59 Idaho 442

D. R. EVANS, Appellant, v. BANNOCK COUNTY, a Body Politic and Corporate, D. C. RAY and W. F. HOWARD, Respondents

No. 6567

Supreme Court of Idaho

October 7, 1938

WITNESSES-EXAMINATION OF ADVERSE PARTY AS IF UNDER CROSS-EXAMINATION-EXPERT AND OPINION EVIDENCE-HYPOTHETICAL QUESTIONS - EXHIBITS-INTRODUCTION ON CROSS-EXAMINATION-PHYSICIANS AND SURGEONS - NEGLIGENCE - ACTION FOR DAMAGES - NONSUIT.

1. The statute providing that certain classes of persons may be examined in civil controversies by the adverse party permits them to be examined as though under cross-examination, but it does not authorize cross-examination, of witnesses who have not been subject to direct examination, and the statute merely permits the calling of any person as a witness, in the specified classes, and proving by him a fact in issue which could not probably be otherwise established and it allows the witness to be examined according to liberal rules of cross-examination whereby leading questions may be used. (I. C. A., sec. 16-1206.)

2. Under statute providing that in civil controversies certain classes of persons may be examined by adverse party as though under cross-examination, the trial court possesses a large discretion in allowing or denying questions on cross-examination. (I. C. A., sec. 16-1206.)

3. The purpose of a statute providing that in civil controversies certain classes of persons may be examined by adverse party as though under cross-examination is to enable a litigant to examine adverse witnesses concerning matters peculiarly within their knowledge, and the statute was not intended to allow the calling of adverse witnesses for the purpose of going over their entire testimony and then not having to be bound by their evidence. (I. C. A., sec. 16-1206.)

4. In action for injuries sustained as result of alleged negligence in performance of an operation, sustaining defendant's objection to hypothetical question intended to elicit, from a physician, the effect of an injection of alcohol instead of novocain, was proper where there was at no time any proof that alcohol had been used and the question assumed the proof of facts that had not been covered by any evidence.

5. In action for injuries sustained as result of defendant's alleged negligence in injecting alcohol instead of novocain into plaintiff before operation, sustaining objection to question as to what effect alcohol would have on nerves was not prejudicial to plaintiff.

6. In action for injuries sustained as result of alleged negligence in performance of an operation, sustaining objection to hypothetical question asked of a physician, in a deposition as to what effect, if any, such injuries would have on the plaintiff, if he was a man who performed outdoor work, was proper since question was too vague, indefinite, and incomplete.

7. In action for injuries sustained as result of alleged negligence in performing an operation, sustaining defendant's objections to plaintiff's proffered exhibits of the record and progress of the operation was not error, where they were sought to be offered in evidence as part of the cross-examination of one of the defendants, since the documents were independent evidence and should have been introduced as part of plaintiff's case in chief.

8. On a motion by defendant for nonsuit after plaintiff has introduced his evidence and rested his case, defendant must be deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tends to prove.

9. In action for injuries sustained as result of alleged negligence in performing an operation where the gist of the negligence charged was that alcohol instead of novocain was used for anesthetic purposes, granting a nonsuit for defendant was not error, where none of the witnesses testified that alcohol was injected and all of the witnesses who had been in operating room testified that novocain was used.

10. In action for injuries sustained as result of alleged negligence in performing an operation, plaintiff had the burden of proof, and merely showing a possibility of raising a suspicion that defendants may have been negligent did not satisfy requirement that it takes some evidence, either direct or circumstantial, to require the submission of a case to the jury.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action for damages. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

O. A Johannesen, for Appellant.

Cross-examination of a party to an action under section 16-1206, I. C. A., 1932, is not limited to matters peculiarly within the witness' own knowledge. (Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014.)

A hypothetical question need not, of necessity, contain facts proved but is sufficient if the question fairly tends to state the theory of the examiner. (Jones Commentaries on Evidence, vol. 2, sec. 371 (373), p. 902.)

On a motion for a nonsuit every favorable inference deducible from evidence produced must be considered as facts proved in favor of the plaintiff. (Lassen v. Southern P. Co., 173 Cal. 71, 159 P. 143; Moran v. Ebey, 39 Mont. 517, 104 P. 522; Mercantile Trust Co. of Ill. v. Roland, 92 Okla. 126, 218 P. 826; Brady v. Oregon Lumber Co., 117 Ore. 188, 243 P. 96, 45 L. R. A. 812; Findley v. Wilson, 115 Okla. 280, 242 P. 565; Newman v. Great Shoshone & Twin Falls Water P. Co., 28 Idaho 764, 156 P. 111; Reinhold v. Spencer, 53 Idaho 688, 26 P.2d 796.)

Milton E. Zener, O. R. Baum, Terrell & Bistline and Ben Peterson, for Respondent Bannock County; Merrill & Merrill, for Respondents D. C. Ray and W. F. Howard.

Cross-examination of a party to an action under section 16-1206, I. C. A., 1932, is within the judicial control of the trial court and it is not error to refuse to permit one defendant to be thus cross-examined over the objection of the other defendants particularly on matters which can be readily proved by other witnesses. (Boeck v. Boeck, 29 Idaho 639, 161 P. 576; Darry v. Cox, 28 Idaho 519, 155 P. 660; Portland Cattle Loan Co. v. Gemmell, 41 Idaho 756, 757, 242 P. 798.)

A hypothetical question propounded to an expert should be predicated upon facts proven as facts which the evidence in the particular case tends to establish, and not upon conjecture. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45.)

In an action for damages for malpractice, where evidence is as consistent with the absence, as with the existence, of negligence, the case should not be left with a jury. (Swanson v. Wasson, 45 Idaho 309, 262 P. 147; Ewing v. Goode, 78 F. 442.)

Where the plaintiff fails to make out a case for the jury it is the duty of the trial court to dismiss the action and sustain a motion for nonsuit. (Blackwell v. Kercheval, 29 Idaho 473, 160 P. 741.)

AILSHIE, J. Holden, C. J., and Morgan, Budge and Givens, JJ., concur.

OPINION

AILSHIE, J.

This is an action by appellant for damages against respondent Bannock county and D. C. Ray and W. F. Howard, as physicians and surgeons. Bannock county was owner of and operating the Pocatello General Hospital and defendants Ray and Howard were practicing physicians and surgeons who performed a herniotomy on appellant at the hospital. Negligence was charged as the basis of the cause of action. The cause was tried before the court and jury, and after the close of plaintiff's evidence, and on motion of defendants for a judgment of nonsuit, order was entered granting the nonsuit and entering judgment of dismissal. From the judgment of dismissal this appeal is taken.

Appellant's first thirteen assignments of error are directed against the rulings of the court on the admission and rejection of evidence. These assignments involve three different groups of alleged errors: The first group is directed to the action of the trial court in sustaining objections to questions propounded to various of the witnesses who were called by plaintiff for cross-examination under the statute. (Sec. 16-1206, I. C. A.) The statute was construed in Darry v. Cox, 28 Idaho 519, 523, 155 P. 660, as follows:

"The act permits the examination of the classes of persons mentioned in the title, by the adverse party, as if under cross-examination. It does not authorize, nor was it the intention of the legislature to attempt to authorize, the impossible--the cross-examination of a witness who has not been subjected to direct examination. It permits a party to a civil action or proceeding to call as a witness the adverse party, or other person included in one of the classes above mentioned, and to prove by him a fact or facts in issue which could not, probably, be otherwise established, and to allow such witness to be examined according to the liberal rules of cross-examination whereby leading questions may be propounded."

This statute has frequently been under discussion by this court and the foregoing rule has been uniformly followed, as may be seen from the following cases: Boeck v. Boeck, 29 Idaho 639, 161 P. 576; Portland Cattle Loan Co. v. Gemmell, 41 Idaho 756, 757, 242 P. 798; Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014; Estate of Brown, 52 Idaho 286, 298, 15 P.2d 604; Franklin v. Wooters, 55 Idaho 619, 625, 45 P.2d 804.

The trial court possesses a large discretion in allowing or denying questions on cross-examination under this statute. The purpose, of course, of the statute was to enable a litigant to call an adverse party or his representative and examine him concerning matters that are peculiarly within the knowledge of the witness and not easily accessible to the party calling the witness. On the other hand, it was never intended to allow a litigant to call the adverse party, his...