Hohenstein v. Dodds
| Decision Date | 11 June 1943 |
| Docket Number | 33399. |
| Parties | HOHENSTEIN v. DODDS. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. An expert witness's opinion based on conflicting evidence which he is called upon to weigh is inadmissible.
2. An expert witness may not include the opinion of another expert witness as basis for his own opinion.
3. The proper measure of damages in the case at bar, where there was no market value for the sick and exposed pigs by reason of Minn.St.1941, § 614.47 (Mason St.1927, § 10450), was the difference between their value as they were on the date of defendant's call, if they were to receive proper treatment, and the value of those which survived defendant's treatment.
4. There was sufficient evidence of negligence on defendant's part to go to the jury.
Wilson & Blethen and Arthur H. Ogle, both of Mankato, for appellant.
John R. Thomas, of Lake Crystal, and Schmitt, Johnson & Farrish, of Mankato, for respondent.
This is an action against a licensed veterinarian to recover damages for his alleged negligence in the diagnosis and treatment of plaintiff's pigs. Defendant had a verdict, and plaintiff appeals from an order denying his motion for a new trial.
Plaintiff is a farmer who was engaged in raising a herd of purebred Spotted Poland China hogs. May 29, 1940, he noticed that one pig had died and some of the rest of the herd were ill. He called defendant to examine them. Defendant came to the farm and, after an examination, the extent of which is in dispute vaccinated the pigs for cholera. Soon thereafter the pigs began to die rapidly until, all told, 63 out of a herd of 86 succumbed and most of the remander of the herd were no 'good pigs.' It is plaintiff's contention that the pigs did not, in fact, have cholera and that defendant was negligent in wrongly diagnosing and vaccinating for this disease.
1. The principal assignment of error is the admissibility of opinion evidence of experts based upon conflicting testimony. Defendant produced as witnesses three experienced veterinarians who qualified as experts. Each of the witnesses was asked a question similar to the following: 'Now, doctor, based upon your knowledge of veterinary medicine, and based upon the testimony as to the condition of the hogs as related by the plaintiff, Mr. Hohenstein, and as related by Dr. Dodds, do you have an opinion as to what those hogs were suffering from at the time that Dr. Dodds was called to treat them?'
Over plaintiff's objection, each witness testified that he did have an opinion and that that opinion was that the pigs were suffering from hog cholera.
The testimony is conflicting as to the condition of the pigs at the time defendant came to the farm. Plaintiff testified that defendant did not examine the deceased pig but only 'gave it a kick as he went by,' that defendant spent less than a minute in examining the others, and that he did not take the temperature of any of the pigs before making his diagnosis. On the contrary, defendant testified that he thoroughly examined the dead pig, spent several minutes in examining the others, took the temperature of two, and that the temperature of one was 106 degrees and the other 'a little bit higher.' There is no dispute among the experts that a high temperature is a definite symptom of hog cholera, and that, if the pigs had necrotic enteritis, as plaintiff contends, the temperature would have been below 100 degrees.
Thus the witnesses were put in the position of weighing the facts upon which they based their opinions, as it is obviously impossible to assume as true facts that are in themselves contradictory. A question propounded in this way is fair neither to the witness nor to the jury. The rule is well stated in 3 Jones, Evidence, 2 Ed., p. 2424, § 1324:
'A question of such nature, calling upon the witness for a conclusion from all the evidence heard but without assuming any facts established thereby, is obnoxious, where the facts are in dispute, as permitting the witness to accept such of the evidence as he believes to be true and to reject such as he does not deem reliable. In effect, the question is, 'Having heard the whole of the evidence, state your conclusion from that which you select as the basis of your judgment.''
This is the general rule. 2 Wigmore, Evidence, 3 Ed., p. 800, § 681; Quimby v. Greenhawk, 166 Md. 335, 171 A. 59; Lippold v. Kidd 126 Or. 160, 269 P. 210, 59 A.L.R. 875. This court has recognized that the better practice is to question an expert witness by means of hypothetical questions. Crozier v. Minneapolis St. R. Co., 106 Minn. 77, 118 N.W. 256. Where facts are disputed, either party may put to an expert questions embodying the disputed facts as his construction of the evidence would show them to be. Jorstad v. Benefit Ass'n of Ry....
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