Harrod v. Bisson

• Decision Date: 23 February 1911
• Docket Number: No. 6,885.,6,885.
• Citation: 48 Ind.App. 549,93 N.E. 1093
• Parties: HARROD v. BISSON.
• Court: Indiana Appellate Court

48 Ind.App. 549

93 N.E. 1093

HARROD

v.BISSON.

No. 6,885.¹

Appellate Court of Indiana, Division No. 1.

Feb. 23, 1911. Court denied.

Appeal from Circuit Court, Allen County; 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. Houck, for appellee.

HOTTEL, J.

This is an action against the appellant to recover damages alleged to have resulted from the negligent and unskillful manner in which he reduced and treated appellee's fractured and injured wrist and hand.

The amended complaint is in three paragraphs.It will be necessary to set out the substance of the first only, which is as follows: “That on August 25, 1904, appellant was a practicing physician and surgeon; that on said day the appellee, Mary Bisson, fell from a chair and dislocated, bruised and injured the wrist of her left arm, and dislocated, bruised, broke and injured the bones in the wrist and hand on her left arm, and the appellant undertook faithfully, skillfully, and diligently to treat and set and endeavor to cure said hand, arm, and wrist, but the plaintiff avers that, on the contrary thereof, the said defendant conducted himself in and about his endeavoring to set said wrist and hand, and in and about curing the same, so unskillfully, negligently, and unprofessionally, that by reason of the improper treatment, and unskillful and negligent conduct of the defendant, said wrist and hand were not set, nor healed and cured, but were permitted to remain out of place for the space of six weeks and three days, until it became impossible to properly set or cure the same, whereby she is damaged in the sum of five thousand dollars.”

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

The first ground of this motion, urged by counsel, is one which relates to the admission of evidence. On cross-examination the appellant was asked the following question: “Doctor, did you convey your real estate to your wife after this suit was brought or just before?” And over the objection and exception of the 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 upon 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 the appellant himself was conscious of having failed and neglected to treat the appellee's injured arm in that skillful and careful manner which the law required under such circumstances, and feared that he might be required to respond in damages on account of such neglect and lack of skill. We assume that it was upon this theory that the court below admitted the evidence. The appellant testified in chief to his treatment of the broken arm, and in effect denied any act of omission or commission that it in any way tended to show any lack of professional skill, care or attention, but said in effect that he did everything that a careful, attentive, and skillful surgeon would have done under the same circumstances. This being the effect of appellant's testimony, it was proper on cross-examination for the 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 evidence, or admission elicited by the question objected to, tended, in some degree, to have this effect, or at least was a question necessarily preliminary to other questions which might elicit answers having such tendency and effect, and that for this reason the evidence, if competent and proper 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 and the better reasoning of the same favors its admission. In the case of Myers v. Moore, 3 Ind. App. 226, 231, 28 N. E. 724, 726, this court said: “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.”

Wharton, in his law on Evidence, vol. 2, § 1081, says: “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, 7 Or. 277, 279. See, also, 1 Greenl. Ev. §§ 65, 170.

In the case of Heneky v. Smith, 10 Or. 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 14 days after the shooting, and 6 days, as it appears from the record, 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 admitting it to go to the jury. In discussing that case the Supreme Court of Oregon 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.’ Pennsylvania R. R. v. Henderson, 51 Pa. 315. Wigmore on Evidence, 1, § 282, uses the following language: “The conveyance of property during litigation or just prior to it may be evidence of the transferror's consciousness that he ought to lose.”

Counsel for appellant insist that in this state the most recent case upon this subject is the case of Miller et al. v. Dill et al., 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 that case. That case was one where the plaintiffs brought suit to cancel some promissory notes, claiming that they were forgeries. One of the plaintiffs testified in his own behalf, and upon cross-examination was asked if he then owned property, and if he did not convey property held by him at the time of the alleged execution of the notes, to which question the court sustained objections, and the Supreme Court said in reference thereto: “It is claimed that this question 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 this case, relied upon by counsel for appellant, were entirely different from those in the case at bar. It was plaintiff and not the 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 the case at bar, and in that case the only question put was: “If he (the plaintiff) then owned property, and if he had not conveyed property held by him at the time of the alleged execution of the notes.” There was no offer to follow this other questions and answers showing that the conveyance was fraudulent. If the harm came from the question, which appellant insists probably resulted, it seems to us that 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...