Henry v. Hall

• Decision Date: 31 May 1883
• Citation: 13 Bradw. 343,13 Ill.App. 343
• Parties: SAMUEL HENRYv.SAMUEL F. HALL.
• Court: United States Appellate Court of Illinois

13 Ill.App. 343

13 Bradw. 343

SAMUEL HENRY

v.SAMUEL F. HALL.

Appellate Court of Illinois, Third District.

May Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. S. P. SHOPE, Judge, presiding. Opinion filed June 27, 1883.

Messrs. SIBLEY, CARTER & GOVERT, for appellant; that the re-examination of a witness must be confined to matters inquired of in his cross-examination, cited Dutton v. Woodman, 9 Cush. 255; 2 Phillips on Evidence, 407; Smith v. Dreer, 3 Wharton (Pa.), 154; Allen v. Hancock, 16 Vt. 230.

As to negligence: Shearman & Redfield on Negligence, 443; McCandler v. McWha, 22 Penn. 261; Chamberlain v. Morgan, 68 Penn. 168; Potter v. Warner, 91 Penn. 362; Hebbard v. Thompson, 109 Mass. 286; Geiselman v. Scott, 25 Ohio St. 86.

Where there is a conflict of evidence, instructions should be accurate, clear and perspicuous: Toledo W. W. R'y Co. v. Moore, 77 Ill. 217; Volk v. Roche, 70 Ill. 297; Cushman v. Cogswell, 86 Ill. 62; Shaw v. The People, 81 Ill. 150; T. W. & W. R. R. Co. v. Grable, 88 Ill. 441; Am. Ins. Co. v. Crawford, 89 Ill. 62; Wabash R'y Co. v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475; Stratton v. Central City Horse R'y Co. 95 Ill. 25; Swan v. The People, 98 Ill. 610.

A verdict of the jury which is the result of chance, will be set aside: Dunn v. Hall, 8 Black. 32; Robert v. Tails, 1 Cow. 238; Mitchell v. Ehle, 10 Wend. 595; Bennett v. Baker, 1 Humph. (Tenn.) 399.

As to the rule in respect to expert testimony: C. & A. R. R. Co. v. Springfield & N. W. R'y Co. 67 Ill. 142; Hoener v. Koch, 84 Ill. 408.

Mr. A. E. WHEAT and Mr. SAMUEL WOODS, for appellee; that where a party cross-examines a witness as to inadmissible facts, the other party is entitled to re-examine him as to evidence so given, cited 2 Phillips on Evidence, 973; 4 Jacobs' Fisher's Digest, 5095; Blewett v. Tregonning, 5 N & M. 308.

If an objection goes to any matter of form or to anything other than the relevancy of testimony, it must be made specifically and so as to inform the opposing counsel and afford opportunity to obviate the objection: Merchants D. T. Co. v. Joesting, 89 Ill. 152; Town of Flora v. Lee, 5 Bradwell, 629; Schill v. Reisdorf, 88 Ill. 411; Cottingham v. Springer, 88 Ill. 90; Galena & S. W. R. R. Co. v. Birkbeck, 70 Ill. 208; Stone v. Great West. Oil Co. 41 Ill. 85; Graham v. Anderson, 42 Ill. 514; Howell v. Edmunds, 47 Ill. 79; Moser v. Kreigh, 49 Ill. 84; Hanford v. Obrecht, 49 Ill. 146.

The giving or refusing instructions containing mere abstract propositions of law is not error: Parker v. Fergus, 52 Ill. 420; Ryan v. Donnelly, 71 Ill. 100; Bandalow v. The People, 90 Ill. 218.

A physician and surgeon are required to possess and use reasonable skill: Quinn v. Donovan, 85 Ill. 194: Ritchey v. West, 23 Ill. 385; Stevens v. Walker, 55 Ill. 152; Barnes v. Means, 82 Ill. 379; Kendall v. Brown, 74 Ill. 232.

An instruction which assumes a certain fact without leaving the jury to find the same from the evidence is not erroneous, when there is no dispute made as to such fact and it is not denied by either party: Caldwell v. Stephens, 57 Mo. 589; Hanrahan v. The People, 91 Ill. 142.

Where the evidence is very conflicting it is the province of the jury to reconcile the same, and a court will be slow to reverse under such circumstances: Morgan v. Ryerson, 20 Ill. 346; Malburn v. Schreiner, 49 Ill. 70; Keokuk P. Co. v. Henry, 50 Ill. 268; City of Chicago v. Garrison, 52 Ill. 517; Millikin v. Taylor, 53 Ill. 509; Guerdon v. Corbett, 87 Ill. 274; Fish v. Roseberry, 22 Ill. 298; Chicago & R. I. R. R. Co. v. McKean, 40 Ill. 223.

HIGBEE, J.

This suit was brought by appellee against appellant as a practicing surgeon for alleged malpractice in treating appellee for a fracture of the internal malleolus and both bones, tibia and fibula, of the right leg. The trial resulted in a verdict and judgment in favor of the plaintiff below, to reverse which appellant brings the case to this court.

After appellee had testified at great length to the nature and character of his injuries and the manner of their treatment by appellant for a period of several months, and examined several other witnesses in reference thereto, and caused to be read by a short-hand reporter the evidence of appellant given in a former trial between the same parties in reference to the same subject-matter, in which a very different statement is given of many important particulars in the character and treatment of the injuries from that given by appellee, Dr. Yancey was called and examined by appellant as an expert, and after he had testified that he had heard the evidence of appellee in chief, but not his cross-examination, the court, against the objections of appellant, permitted the following question to be asked and answered by said witness:

“I will ask you whether or not, from what you have heard in evidence, in your opinion, the treatment that Dr. Henry gave to the injury of Mr. Hall was such treatment as a physician and surgeon possessed of the ordinary knowledge and skill should give such an injury?”

Answer--“I do not.”

By the court--“That is based upon the supposed state of facts?”

Answer--“Yes sir.”

This question and answer involved and determined the very issue the jury were sworn to try. If the treatment of appellant was not such as a surgeon possessed of ordinary skill should give a similar injury under like circumstances then the defendant was guilty of malpractice. The witness was allowed to draw his conclusions from the entire range of appellee's evidence in chief, occupying eleven pages of closely printed matter in the abstract, and to declare that from the evidence he finds appellant substantially guilty. This mode of examination we think violates the rule as announced in the case of Hoener v. Kock et al. 84 Ill. 408.

Neither the answer to the question of the court nor the subsequent exclusion of the evidence could remove the evil effects of such evidence from the mind of the jury. L. F. Ins. Co. v. Rubin, 79 Ill. 408; L. B. & M. R. Rd. v. Winslow et al. 69 Ill. 219.

But the testimony of Dr. McDavit, which was not excluded, is not less objectionable. It was as follows:

“Now Doctor, from the testimony in the case, could the bone have been kept in proper position? The question is this, Doctor: whether the treatment bestowed by Dr. Henry upon the injuries of Mr. Hall, as testified to in this case, were, in your opinion, such treatment as a physician of ordinary skill and knowledge should bestow on injuries of the character that his are shown to be.

Answer--“As far as I heard the evidence, I should prefer to have kept these parts in position.”

Question--“Now, in the treatment of the limb as you heard it detailed here, I will ask you whether or not the bone, the fragments of the bone, could have been kept in proper position; I speak of the whole treatment?”

Answer--“I think it was very difficult to move the limb as stated here by the witnesses--very difficult to keep it in position by moving it with unskilled hands.”

Question--“Now,...