Jacobs v. City of Cedar Rapids

Decision Date25 October 1917
Docket Number30541
Citation164 N.W. 891,181 Iowa 407
PartiesVIOLA JACOBS, Appellee, v. CITY OF CEDAR RAPIDS, Appellant
CourtIowa Supreme Court

Appeal from Cedar Rapids Superior Court.--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, for appellant.

Rickel & Dennis and E. A. Johnson, for appellee.

SALINGER J. GAYNOR, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

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 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. City of Osage, 80 Iowa 293, at 298 to 301, 45 N.W. 550, 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 nothing 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. Chicago, R. I. & P. R. Co., 166 Iowa 566, 148 N.W. 128); 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. Sims Drug Co., 114 Iowa 275, at 279 to 281, 86 N.W. 307; McConnell v. City of Osage, 80 Iowa 293, 45 N.W. 550. And see Lauer v. Banning, 140 Iowa 319, 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.

1-a

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. State v. Row, 81 Iowa 138, 46 N.W. 872. It is said in Mosier v. Vincent, 34 Iowa 478, "They may have severally answered that 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 v. Kavanagh, 12 Iowa 273, Iowa & Minn. R. Co. v. Perkins, 28 Iowa 281, Lawson v. Campbell, 4 G. Greene 413, Jenks v. Knott's M. S. M. Co., 58 Iowa 549, at 552, 12 N.W. 588, Shellito v. Sampson, 61 Iowa 40, 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 v. Cook, 74 Iowa 433, 435, 38 N.W. 137; Arnold v. Livingstone, 155 Iowa 601, 604, 134 N.W. 101; Willey v. Hall, 8 Iowa 62, at 64; Klaman v. Malvin, 61 Iowa 752, 16 N.W. 356; Mays v. Deaver, 1 Iowa 216, 225; Speers v. Fortner, 6 Iowa 552; 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 v. City of Omaha, (Neb.) 60 N.W. 591, 592; Masters v. Marsh, (Neb.) 27 N.W. 438; Klaman v. Malvin, 61 Iowa 752, 16 N.W. 356; Kelleher v. City of Keokuk, 60 Iowa 473, 15 N.W. 280; Arnold v. Livingstone, 155 Iowa 601, 134 N.W. 101; Porter v. Moles, 151 Iowa 279, 131 N.W. 23; Yates v. Kinney, (Neb.) 41 N.W. 128, 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 only in such way 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 v. Kavanagh, 12 Iowa 273; Jenks v. Knott's M. S. M. Co., 58 Iowa 549, 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. Iowa & Minn. R. Co. v. Perkins, 28 Iowa 281; Emerick v. Sloan, 18 Iowa 139; Hanan v. Hale, 7 Iowa 153.

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 40, 41, we should not "imagine the testimony that would have been given, and thus presume prejudice." We say, in Arnold's case, 155 Iowa 601, at 607:

"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." (606) It is incumbent on appellant "to make it appear in some proper way what the proposed testimony was or would be." (607)

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 v. Rustemeyer, (Conn.) 39 A. 104; Maxwell Land-Grant Co. v. Dawson, (N. M.) 34 P. 191; Fearey v. O'Neill, (Mo.) 50 S.W. 918. 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. 85, at 86. And see Votaw & Hartshorn v. Diehl, 62 Iowa 676, 678, 13 N.W. 757.

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 279, 280, a suit on an...

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16 cases
  • Jacobs v. City of Cedar Rapids
    • United States
    • Iowa Supreme Court
    • 25 Octubre 1917
  • McGuire v. Interurban Railway Co.
    • United States
    • Iowa Supreme Court
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    ... ... Arnold v. Livingstone, ... 155 Iowa 601, 134 N.W. 101; Jacobs v. City of Cedar ... Rapids, 181 Iowa 407, 164 N.W. 891; Wangen v ... ...
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    • Iowa Supreme Court
    • 26 Septiembre 1924
    ...a state of the record we cannot say that the error was prejudicial. Arnold v. Livingstone, 155 Iowa, 601, 134 N. W. 101;Jacobs v. City, 181 Iowa, 407;164 N. W. 891;Wangen v. Power Co., 185 Iowa, 110, 169 N. W. 668. [9] Appellant testified that a short time after the camp started, and at a t......
  • Pearson v. Butts
    • United States
    • Iowa Supreme Court
    • 23 Noviembre 1937
    ...deem it unnecessary to again review the law upon this question, but for a further discussion thereof refer to that case, 181 Iowa 407, 164 N.W. 891, 894.In that case, in this, the plaintiff and plaintiff's physician gave testimony concerning her injuries, and therein a doctor offered by def......
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