Fabian v. Goldstone

• Decision Date: 28 February 1952
• Docket Number: No. 18189,18189
• Citation: 103 N.E.2d 920,123 Ind.App. 49
• Parties: FABIAN v. GOLDSTONE et al.
• Court: Indiana Appellate Court

Page 920

103 N.E.2d 920

123 Ind.App. 49

FABIAN v. GOLDSTONE et al.

No. 18189.

Appellate Court of Indiana, in Banc.

Feb. 28, 1952.

Jay E. Darlington, Hammond, Ryan & Chester, Valparaiso, for appellant.

Samuel S. Dubin, Draper & Eichhorn, Gary, for appellees.

CRUMPACKER, Judge.

The appellant sought damages for alleged malpractice by the appellees, duly licensed doctors of medicine practicing their profession in Gary, Indiana, in treating her for 'over weight' whereby, through a series of alleged blunders, her health has been ruined, her life expectancy greatly shortened and her capacity to earn a living destroyed. Having lost her case below she asks us to reverse on the theory that she was deprived of a fair trial through a series of cumulative irregularities in the proceedings of the court and the prevailing parties. Burns' Stat. § 2-2401.

In seeking to prove that the course of medical treatment administered by the appellees was not equal to the average degree of professional care and skill possessed and exercised by members of the medical profession in good standing in Gary, Indiana, and similar communities, the appellant offered Dr. Edmund Fremont as a witness and he was asked for his opinion in reference thereto based on facts stated hypothetically. The appellees objected to the question for a number of reasons and in the presence of the jury the court announced its ruling as follows: 'I am going to overrule the objection on the theory that the witness has stated his degree of knowledge which would make it appear as of some value, and let the jury determine what the testimony is worth; although I think that the better rule may be that this type of a witness should be a member of the profession in all respects at the time he gained the knowledge to which he testified.' Thereupon counsel for the appellant said: 'Let the record show we except to the court's comments on the weight of evidence because that is the province of the jury.'

This incident presents the first question involved in this appeal. The appellant contends that the remarks of the court, in the course of its ruling, disparaged the qualifications of Dr. Fremont as a witness and constituted an unfavorable reflection on the weight of the opinions he thereafter expressed. As Dr. Fremont was the only medical expert the appellant had, or was able to get, and as her whole case turned on questions wholly within the knowledge of such experts, she contends that her cause of action was thus irreparably damaged in the eyes of the jury before it went to them for a verdict.

There is nothing in the record before us that indicates that the jury which heard this case was not composed of intelligent men and women. They were informed by proper instruction and knew that they were the exclusive judges of the credibility of the various witnesses and the weight to which their testimony was entitled. In this connection the court, in effect, said it had concluded that Dr. Fremont was qualified to express his opinion on the subject inquired about and such opinion was entitled to some weight but the question of how much weight it should be given was for the jury to determine. It seems to us that if these remarks, made by the court in announcing its ruling, were improper and prejudicial, it is the appellees who are entitled to complain as the court clearly indicated it thought Dr. Fremont's testimony would be of some value whereas the jury, the exclusive judges of the matter, may have considered that it had none whatever. All evidence in any law suit is admitted for what it is worth. In addition the jury is usually informed, as it was in the present case, that it and it alone must fix the ultimate value to be attached to any item of evidence and we cannot believe that the casual remark of the judge that the testimony of Dr. Fremont would be admitted because it appeared that it would have some value in determining the issues, could have been understood as a statement by the judge that in his opinion such testimony would be entitled to little weight. See State v. Miles, 1906, 34 Mont. 12, 85 P. 369, 8 L.R.A.,N.S., 762.

The statement of the court that it thought the 'better rule may be that this type of a witness should be a member of the profession in all respects at the time he gained the knowledge to which he testified,' if it was at all intelligible to the jury, could only be understood as an expression by the court of its intention to follow the law on the question of Dr. Fremont's qualification to testify as an expert although it thought some other test might be better. If the court concluded to follow the prevailing rule rather than what it thought the rule ought to be and the court's influence over the jurors was as profound as the appellant asserts, we have no reason to believe they rejected the court's attitude and repudiated Dr. Fremont's qualifications as an expert. However assuming, for the sake of the discussion, that the Judge's remarks were improper and constituted an irregularity in the proceedings of the court, they certainly did not constitute an error of law relief from which could be deferred until a motion for a new trial was filed. Appellant was bound to seek relief immediately through a motion that such remarks be withdrawn and the jury admonished. If the prejudice was so severe that it could not be cured in that manner then the appellant's remedy was a motion for a mistrial. She sought neither remedy and made no complaint until she filed her motion for a new trial. Thus she waived the question and took her chances on a favorable verdict. Umbstead v. Preachers Aid Soc., etc., 1944, 223 Ind. 96, 58 N.E.2d 441.

Among the objections to the competency of Dr. Fremont to testify as an expert witness was the fact that he is not and never has been licensed to practice medicine in Indiana. The record discloses, however, that he served as a resident physician at the Methodist Hospital in Gary for a year and a half in 1941 and 1942. The court ruled that such experience qualified him to testify as to standard medical practice in Gary and similar communities even though not duly licensed by the State of Indiana then or at the time his testimony was given. Notwithstanding this ruling the appellees repeated such objection to each subsequent question the appellant asked the witness and by such tactics, the appellant contends, they built up prejudice against the witness through continual emphasis on the fact that he held no license to practice in Indiana. Whether the continued repetition of this objection was necessary to save the question of the witness' qualification as an expert, we are not called upon to decide. The court overruled the objection each time it was made and the appellant was apparently satisfied as she asked no relief at the time from a practice which she now asserts was improper and prejudicial and of which she complained for the first time in her motion for a new trial. This was too late and the question is not available on appeal. Blue v. State, 1946 224 Ind. 394, 67 N.E.2d 377; Henning v. State, 1886, 106 Ind. 386, 6 N.E. 803, 7 N.E. 4.

The appellant next contends that she was deprived of a fair trial by disparaging remarks made by the court to her counsel in the jury's presence. She calls our attention to but one incident of such alleged conduct. Her counsel was engaged in the re-direct examination of Dr. Fremont and objection was interposed to one of his questions on the ground that the matter involved was not gone into on direct examination. In the course of its ruling the court said: 'On the other hand, the purpose of rules of procedure is to put an end to the trial. That, of course, is the reason for limiting your examination on re-direct to cross-examination and the re-cross to anything gone into on re-direct. I am going to let him answer. * * * I would say, Mr. Darlington, (appellant's counsel) I would like to get this trial moving on.' The appellant construes this incident as an accusation by the court that she was to blame for delaying the trial, to which the jury would naturally react unfavorably. We recognize, of course, that no court is justified in sacrificing the rights of litigants for the mere purpose of saving time. Rooker v. Deering Southwestern Ry. Co., 1920, 206 Mo.App. 79, 226 S.W. 69. Nor did the court do so in the present case as its ruling was favorable to the appellant. Courts are charged with the duty of managing trials as expeditiously as is consistent with the rights of the parties and it cannot be said that the suggestion of a judge that he 'would like to get this trial moving on,' made to counsel then engaged in the examination of a witness, is such a remark as would so prejudice the jurors as to cause them to disregard their oaths to try the case according to the law and evidence. Furthermore the appellant again failed to make any objection to the court's remarks at the time they were made nor did she seek to have them withdrawn and the jury properly admonished. She reserved her protest until after the verdict which is too late even though the incident of which she complains was prejudicial. Umbstead v. Preachers' Aid Soc., etc., supra.

During the course of the trial the court excluded certain evidence which the appellant insists was competent and proper in proof of one of the acts of negligence alleged in her complaint. She charges no specific error in its exclusion but says that the court, in making its ruling, manifested a critical attitude toward her counsel thus aggravating the prejudice against her case. An examination of the record discloses that the court and appellant's counsel differed as to the legal import of the questioned allegation. Counsel argued that it charged negligence in administering thyroid extract without first taking precaution to ascertain that appellant's physical condition would permit it without danger of complications. The court construed the allegation as...