Harrod v. Bisson

• Decision Date: 23 February 1911
• Docket Number: 6,885
• Citation: 93 N.E. 1093,48 Ind.App. 549
• Parties: HARROD v. BISSON
• Court: Indiana Appellate Court

93 N.E. 1093

48 Ind.App. 549

HARROD v. BISSON

No. 6,885

Court of Appeals of Indiana

February 23, 1911

Rehearing denied June 1, 1911. Transfer denied October 31 1911.

From Allen Circuit Court; E. O'Rourke, Judge.

Action by Mary Bisson against Morse Harrod. From a judgment for plaintiff, defendant appeals.

Affirmed.

Fred Shoaff and Zollars & Zollars, for appellant.

A. H Bittinger and A. E. Hauck, for appellee.

OPINION

HOTTEL, J.

This is an action against appellant, to recover damages alleged to have resulted from the negligent and unskilful manner in which he reduced and treated appellee's fractured and injured wrist and hand. The amended complaint is in three paragraphs. The substance of the first is as follows: That on August 25, 1904, appellant was a practicing physician and surgeon; that on said day appellee fell from a chair, and dislocated, bruised and injured the bones in her left wrist and hand; that appellant undertook to set said bones, and to cure such injuries, but, in his endeavor so to do he was so unskilful, negligent and unprofessional that, by reason of said improper treatment, and unskilful and negligent conduct of the defendant, said bones in said wrist and hand were not set, but were permitted to remain out of place for six weeks and three days, until it became impossible properly to set or cure them, whereby plaintiff is damaged in the sum of $ 5,000.

A demurrer was filed to each paragraph of the amended complaint, which was overruled, and exceptions given to appellant. The cause was then put at issue by an answer in general denial, and a separate answer of the two-year statute of limitations given to each paragraph. The cause was tried by a jury, and a verdict of $ 1,000 for appellee returned with answers to interrogatories. A motion for a new trial was overruled, and a judgment for $ 1,000 was rendered on the verdict, from which appellant prayed an appeal to this court. The only error assigned that is argued by counsel is the overruling of the motion for new trial.

The first ground of this motion relates to the admission of evidence. On cross-examination appellant was asked the following question: "Doctor, did you convey your real estate to your wife after this suit was brought, or just before?" Over the objection of appellant, the doctor was permitted to answer the question, "Yes." Appellant's counsel insists that this was error; that the evidence had no relation to any issue in the case, and especially that it was not admissible on cross-examination, because there was no examination of the witness on this subject in his examination-in-chief. As an independent fact, this conveyance by appellant of his real estate to his wife is foreign to any issue in the case, and it could be competent and material, if at all, but for one purpose, viz.: It might disclose inculpatory facts and circumstances, or an admission, by way of acts and conduct, proper to be submitted to a jury, as tending to show that appellant was conscious of having failed and neglected to treat appellee's injured arm in that skilful and careful manner that the law requires, and that he feared that he might be required to respond in damages on account of such neglect and lack of skill. We assume that it was on this theory that the trial court admitted the evidence. Appellant testified that he treated the broken wrist, and, in effect, denied any act of omission or commission that in any way tended to show any lack of professional skill, care or attention, but said that he did everything that a careful, attentive and skilful surgeon would have done under the same circumstances. This being the effect of appellant's testimony, it was proper, on cross-examination, for appellee to elicit from appellant any admission, by way of words or conduct, that tended to contradict, destroy, weaken or discredit his said evidence-in-chief, and we think the admission, elicited by the question objected to, tended to have this effect; therefore, the evidence, if competent at all, was proper on cross-examination.

There seems to be some conflict in the authorities in different states as to the admissibility of this character of evidence, but we think the weight of authority favors its admission. In the case of Myers v. Moore (1891), 3 Ind.App. 226, 28 N.E. 724, this court said at page 231: "The appellant testified in his own behalf, and over his objection was asked upon cross-examination, and required to answer, about the disposition made by him of his property, after the commission of the alleged assault and battery. This examination was competent for one purpose. It might disclose inculpatory facts and circumstances proper to be submitted to the jury. It might throw light upon the quality of the acts charged against the appellant in the complaint. It is upon this principle, or theory, that evidence of flight, escape, disguise, concealment and the like, may properly be considered in determining the guilt or innocence of the accused in a criminal case. Its weight would be a question for the jury. If the appellant wanted to avoid an improper application by the jury of this evidence, he should have prepared a charge upon that subject and requested the court to give it."

It is said in 2 Wharton, Evidence (3d ed.) § 1081: "Admission may be by acts as well as by words. Silence itself may, as we shall soon more fully see, under certain circumstances be proved as involving an admission; and a fortiori may such acts as are tantamount to an admission in words." To the same effect is the case of Parker v. Monteith (1879), 7 Ore. 277. See, also, 1 Greenleaf, Evidence (15th ed.) § 170. In the case of Heneky v. Smith (1882), 10 Ore. 349, 45 Am. Rep. 143, a deed had been admitted in evidence by the lower court, showing a conveyance by defendant of several parcels of real estate, the consideration for which was $ 12,000. This deed was executed fourteen days after a shooting had occurred, and six days after the action was commenced and the summons served. The admission of this evidence was also duly objected to, and an exception taken to the ruling of the court permitting it to go to the jury. In discussing the case the supreme court said: "In view of its character and the circumstances under which it was executed, we think it was properly admitted. The jury might reasonably infer from this act of the appellant, in view of all its surroundings, that it was prompted by a consciousness on his part, that the shooting of the respondent was unjustifiable, and that he was legally liable for the damages occasioned by it. In this view, it would operate like an admission of liability, and be equally competent. 'Admissions may be by acts, as well as by words.' 2 Wharton, Evidence [2d ed.] § 1081; Pennsylvania R. Co. v. Henderson [1865], 51 Pa. 315." In 1 Wigmore, Evidence § 282, the following language is used: "The conveyance of property, during litigation or just prior to it, may be evidence of the transferor's consciousness that he ought to lose."

Counsel for appellant insist that in this State the most recent case upon this subject is that of Miller v. Dill (1898), 149 Ind. 326, 49 N.E. 272, which, they say, is directly in point, and an authority against the admission of this evidence. We do not so construe it. In that case, plaintiffs brought suit to cancel some promissory notes, claiming they were forgeries. One of the plaintiffs testified in his own behalf, and on cross-examination was asked if he then owned property, and if he had conveyed property held by him at the time of the alleged execution of the notes, to which questions the court sustained objections, and the court said in reference thereto: "It is claimed that these questions would have elicited the information that the witness had conveyed property held by him at the time of the alleged execution of the notes, and that he had no property at the time of the examination. The inferences sought to be drawn were that the conveyance was fraudulent, having been intended to defeat these notes, and therefore an act inconsistent with the evidence of the witness that he had not executed the notes, and had no knowledge of their existence. Whatever the legitimate inference from a fraudulent or voluntary conveyance, there can be no inference from the mere conveyance of one's property that he is a debtor, or that he does so to defeat a claim the validity of which he denies."

It will be seen that the facts in that case were entirely different from those in the case at bar. It was plaintiff, and not defendant, who was asked the question, and the same inference was not warranted in the offered evidence in that case that would be warranted in this case. In that case the only questions asked were if he (the plaintiff) then owned property, and if he had conveyed property held by him at the time of the alleged execution of the notes. There was no offer to follow these questions with other questions and answers, showing that the conveyance was fraudulent. If the harm, that appellant insists probably resulted, came from said questions, it must have been due to the silence of appellant, and the want of an explanation by him of the facts and circumstances connected with the conveyance. This the appellant could have prevented by such explanation, if, in fact, the conveyance was bona fide, and was not made on account of a consciousness of his own inculpatory acts. After these questions and answers appellant was entitled, on a redirect examination, to a full explanation and statement of all the facts and circumstances of the conveyance, to the end that the jury might draw no improper inference from the admitted evidence. Appellant also had the further protection that the law affords, of defining the application and purpose...