Jacobs v. City of Cedar Rapids

• Decision Date: 25 October 1917
• Docket Number: No. 30541.,30541.
• Citation: 181 Iowa 407,164 N.W. 891
• Parties: JACOBS v. CITY OF CEDAR RAPIDS.
• Court: Iowa Supreme Court

181 Iowa 407

164 N.W. 891

JACOBS

v.CITY OF CEDAR RAPIDS.

No. 30541.

Supreme Court of Iowa.

Oct. 25, 1917.

Appeal from Superior Court, Linn County; C. B. Robbins, Judge.

Plaintiff claims to have been injured by a fall upon a sidewalk caused by alleged negligence of defendant in allowing snow and ice to remain on the walk. She has judgment upon verdict. The appeal presents whether testimony of a physician offered by defendant was rightly excluded for being privileged under the statute. Affirmed.F. F. Dawley and C. F. Luberger, both of Cedar Rapids, for appellant.

Rickel & Dennis, of Cedar Rapids, and E. A. Johnson, of Lisbon, for appellee.

SALINGER, J.

[1] I. The sole point urged for reversal is sustaining objection to the testimony of a physician on the ground that it was incompetent for being a breach of privilege. The argument is, in effect, that the necessary relation did not exist, or, if it did, that testimony given by the objecting party and her witnesses waived the privilege. Plaintiff testified that before her injury she was in good health and able to do and doing all kinds of work. A medical witness for her said that after the injury he found an infection which must have existed before the injury; that it might or might not have ultimately required operation upon plaintiff if she had not suffered the injury she complains of, but that said injury aggravated the infection and precipitated the operation. Thereupon a doctor witness for defendant testified that he had in the past attended upon the plaintiff as her physician on several occasions and on each had given her medical treatment. The first contention is that as against the objection that same was privileged he should have been allowed to say for what he gave her such treatment. If it were not for one thing presently to be discussed, the case of McConnell v. Osage, 80 Iowa, at 298-301, 45 N. W. 550, 8 L. R. A. 778, is squarely against this claim made by appellant. There the testimony of plaintiff was substantially what it is here, and we held that its giving did not waive the privilege. But the McConnell Case may not be applied without noting a distinction which is created by the fact that plaintiff here testifies, “I did not consult any doctors in regard to my health before my accident.” Had this been said in her examination in chief, we should be constrained to hold that the relation which creates the privilege did not exist, and this though the doctor testifies it did exist. While a party is at liberty to show by one witness what is opposed to the testimony given by another, this will not permit such party for his own advantage to say that the testimony given by himself shall be treated as false and that of an opposing witness as true. Stearns v. Railway, 166 Iowa, 566, 148 N. W. 128.

[2] But she said this on cross-examination, and we inquire whether that fact obviates the effect of the statement that plaintiff had no relations with any doctor. So far as testimony on cross-examination reveals the state of plaintiff's health, its giving does not waive privilege. Burgess v. Drug Co., 114 Iowa, at 279-281, 86 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359;McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778. And see Lauer v. Banning, 140 Iowa, at 328, 118 N. W. 446. But that does not meet the situation here. We are of opinion that when plaintiff testified, though on cross-examination, that no relation existed upon which the claim of privilege could rest, she settled, at least for that trial, that her objection was not well taken.

[3][4][5] Ia. But does the exclusion constitute reversible error? There was no statement of what it was believed or expected would be said if the witness were permitted to answer. We may assume it was the expectation of defendant to elicit something within the range of the paper issue which in its opinion would tend to show that whatsoever plaintiff had suffered was not caused by an act or omission for which defendant was answerable. If the record advised what was expected, we might agree with the opinion we have assumed appellant to entertain. As matters stand, we cannot find that appellant was prejudiced unless we assume that, if permitted to answer, the witness would have said he treated plaintiff for something, the existence of which tends to show that the fall of plaintiff did not cause the injuries of which she complains. He might have done so, or he might have said he did not remember, or said that the treatment was for diphtheria. He might have made answer not open to the objection made and he might not. Row's Case, 81 Iowa, 138, 46 N. W. 872. It is said in Mosier v. Vincent, 34 Iowa, 478, “They might have answered they had no opinion;” or that they did not remember--were not able to answer--the answer might have been unfavorable to the interrogator. Wherefore, as error is presumed against and prejudice must be shown (Mosier v. Vincent, 34 Iowa, 478; Bradley's Case, 12 Iowa, 273; Railway v. Perkins, 28 Iowa, 281;Lawson v. Campbell, 4 G. Greene, 413;Jenks v. Knott, 58 Iowa, at 552, 12 N. W. 588; Shellito's Case, 61 Iowa, 41, 15 N. W. 572), it must be made to appear that the witness was able to answer, and that what was proposed to be elicited was material and of benefit to the appellant (Paddleford's Case, 74 Iowa, 435, 38 N. W. 137; Arnold's Case, 155 Iowa, 604, 134 N. W. 101;Willey v. Hall, 8 Iowa, at 64; Klaman's Case, 61 Iowa, 752, 16 N. W. 356; May's Case, 1 Iowa, 225;Speers v. Fortner, 6 Iowa, 553;Bradley v. Kavanagh, 12 Iowa, 273). Even where it is a party who is being questioned, it will not be presumed he would give testimony beneficial to him if allowed to testify. Barr's Case, 42 Neb. 341, 60 N. W. 591, 592; Master's Case, 19 Neb. 458, 27 N. W. 438; Klaman's Case, 61 Iowa, 752, 16 N. W. 356; Kelleher's Case, 60 Iowa, 473, 15 N. W. 280; Arnold's Case, 155 Iowa, 604, 134 N. W. 101; Porter's Case, 151 Iowa, 279, 131 N. W. 23; Yates' Case, 25 Neb. 120, 41 N. W. 129. On this head support from authority is not needed. It would be a judicial scandal to promulgate as a judicial declaration that a witness is under a species of implied contract to furnish a memory adequate to the needs of the party calling him, and to answer questions in such way only as will benefit that party. The only presumption that may be indulged in is that the witness will tell the truth as he understands it.

Where the question is answered, the answer or its effect must appear in the record. Mosier v. Vincent, 34 Iowa, 478; Bradley's Case, 12 Iowa, 273;Jenks v. Knott, 58 Iowa, at 552, 12 N. W. 588;Lawson v. Campbell, 4 G. Greene, 413;Thurston v. Cavenor, 8 Iowa, 155. If answer is not made, and nothing discloses what was excluded, “we must presume the court ruled correctly in excluding it.” Railroad v. Perkins, 28 Iowa, 281;Emerick v. Sloan, 18 Iowa, 139;Hanan v. Hale, 7 Iowa, 153.

[6] Even if an answered question is complained of, if the answer is not shown it will be presumed that all improper questions were so answered as that the question did no harm (Thurston v. Cavenor, 8 Iowa, 155), and that a witness who might be incompetent answered only as he might competently speak (Lawson v. Campbell, 4 G. Greene, 413). It would follow that, when no answer is made, it should not be assumed that if made it would be of such character as to make its exclusion prejudicial error. In the words of Shellito's Case, 61 Iowa, 41, 15 N. W. 572, we should not “imagine the testimony that would have been given, and thus presume prejudice.” We say in Arnold's Case, 155 Iowa, at 607, 134 N. W. 103:

“If we were to reverse this case upon this ground and remand it for the purpose of permitting these questions to be answered, the answers might prove to be wholly negative. This is illustrated in this record by the ‘fact that one question which was allowed to be answered’ proved to be a pure negation. If the trial court had sustained an objection to such question, and if we were to reverse upon such ruling, such reversal would be based upon an imaginary error and not a real one. The reversal would be rendered farcical by a subsequent negative answer, and it would be none the less so though the answer were affirmative if such answer * * * could not change the final result.”

And say in the same case that:

“We have repeatedly held that we will not reverse a case * * * unless it be made to appear in some manner what the answer of the witness would have been.” 155 Iowa, 606, 134 N. W. 103.

It is incumbent on appellant “to make it appear in some proper way what the proposed testimony was or would be.” 155 Iowa, 607, 134 N. W. 103.

[7] To obtain a reversal on the ground that excluded testimony would have tended to establish some particular fact, it is necessary that the trial court should have been advised that the testimony excluded by it would so tend. Gustafson's Case, 70 Conn. 125, 39 Atl. 104; Maxwell's Case, 7 N. M. 133, 34 Pac. 191; Fearey's Case, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440. There must be a statement which tells the trial court “clearly and explicitly what the evidence was which he offered and expected to elicit by the answer of the witness to the question propounded.” Whitehead v. Mathaway, 85 Ind. at 86. And see Votaw v. Diehl, 62 Iowa, 678, 13 N. W. 757, 18 N. W. 305. The most we may do is to assume defendant expected an answer within range of the issue to which the question was advised, i. e., something that dealt with the health of plaintiff before she was injured. In situations which did more than this as to suggesting the answer sought, it has been held fatal that no profert or statement was made.

In Porter's Case, 151 Iowa, 280, 131 N. W. 23, a suit on an oral guaranty, a witness was not allowed to say what passed between him and defendant respecting future liability on the note. Jordan's Case, 71 Ind. 200, involves the extension of a promissory note, and objection was sustained to a question...