Jones v. Angell

• Decision Date: 14 May 1884
• Docket Number: 10,686
• Citation: 95 Ind. 376
• Parties: Jones v. Angell
• Court: Indiana Supreme Court

95 Ind. 376

Jones v. Angell

No. 10,686

Supreme Court of Indiana

May 14, 1884

From the Tippecanoe Circuit Court.

R Gregory, J. R. Coffroth and T. A. Stewart, for appellant.

J Applegate and C. R. Pollard, for appellee.

OPINION

Colerick C.

This action was brought by the appellant against the appellee for alleged malpractice on the part of the appellee, as a surgeon, in not properly setting and treating the appellant's broken arm. The complaint consisted of two paragraphs. It is unnecessary to refer to its averments, as no question involving their sufficiency has been presented for our consideration. An answer of general denial was filed. The issues were tried by a jury, and resulted in the rendition of a verdict and judgment in favor of the appellee. Motions for a venire de novo, new trial, and in arrest of judgment were overruled, and these rulings are assigned as errors.

The motion for a venire de novo was in writing, and recited as the sole cause for its support that the court erred in discharging the jury without requiring them to answer the interrogatories, five in number, that had been submitted to them, at the instance of the appellee, and which the jury were directed by the court to answer in case they found a general verdict. The bill of exceptions, reserving this question, shows that the jury returned a general verdict in favor of the appellee, but failed to answer the interrogatories, to which omission the attention of counsel was called before the discharge of the jury, but no objection to the omission being made, or any motion interposed to require the interrogatories to be answered, the jury were discharged without answering them.

It is settled, as a rule of practice in this State, by the decisions of this court, that objections to imperfect or incomplete answers to interrogatories submitted to a jury are waived unless made before the discharge of the jury. See City of Huntington v. Breen, 77 Ind. 29, and the cases there cited. This rule applies with equal force to cases where the jury are discharged, in the absence of objection, without answering the interrogatories submitted to them, as it does in cases where the interrogatories are imperfectly or defectively answered. No error was committed in overruling the motion for a venire de novo.

The only reasons assigned in support of the motion for a new trial that have been urged or discussed by the appellant in this court are, that the court erred on the trial of the case in admitting certain evidence, which is referred to in the motion, and in giving certain instructions to the jury at the request of the appellee. The evidence referred to, except that hereafter mentioned, was rendered by physicians, who had been called as experts, to testify to subjects relating to surgery. The evidence rendered by them was relevant and material. The only objection to the evidence that has been discussed by the appellant in his brief relates to its competency. If any objection on that ground existed it was insufficiently stated in the court below to present the question for consideration. An objection, as was made in this case, that the evidence offered is incompetent, without specifically stating the grounds upon which the objection is founded, is too indefinite to present any question. See Lake Erie, etc., R. W. Co. v. Parker, 94 Ind. 91, and the cases there cited; also McClellan v. Bond, 92 Ind. 424.

The opinion of an expert in any art, science, trade, profession or mystery may be given where it is proper for the decision of a question relating to the issues in the case. See Indiana, etc., R. W. Co. v. Hale, 93 Ind. 79. One who is an expert may not only give opinions, but may state facts which are the result of a scientific knowledge or professional skill. Emerson v. Lowell, etc., Co., 6 Allen 146. The evidence was properly admitted by the court.

The appellant insists that the court erred in allowing the appellee to testify that he had received no compensation from, and had made no charge against, the appellant, for the services which he rendered in treating the appellant's injury, and the case of Baird v. Gillett, 47 N.Y. 186, is cited by the appellant in support of his assertion. In the case cited, which was an action for malpractice, the trial court admitted proof by the plaintiff that the defendant had never presented any bill, or asked any pay, for his services. The proof was admitted by the court, as a circumstance, in the nature of an admission, tending to prove that the defendant was guilty of malpractice as charged. On appeal it was held that the court below erred in admitting the evidence. The tendency of such proof, if competent, would be favorable to the plaintiff in a case like this. If error was committed in this case in permitting such proof to be made, it did not affect or prejudice the rights of the appellant, and, therefore, was a harmless error. It is firmly settled by many cases that a judgment will not be reversed by this court for harmless errors committed in the court below. Buskirk Pr., p. 284.

It is also claimed by the appellant that the court erred in permitting the appellee to prove that Doctor Richardson, who assisted him in setting the fractured arm, was a skilful physician and surgeon. The evidence was evidently introduced for the purpose of showing that Doctor Richardson was a suitable person to render the services performed by him, and for that purpose it was competent.

The instructions referred to in the motion for a new trial that have been assailed in this court are those numbered one, four, six, eight and eleven. The first instruction was as follows: "To entitle the plaintiff to recover in this action, he must have proved by a preponderance of evidence every material allegation in one of the paragraphs of his complaint. If, therefore, upon any material allegation of either paragraph of the complaint the evidence is equally balanced, upon that paragraph of the complaint your verdict must be for the defendant; and if, in both paragraphs, there be one or more material allegations upon which the evidence is equally balanced, then upon the whole case your verdict must be for the defendant." The objection urged by the appellant to this instruction is, that it incorrectly informed the jury that if the appellant failed to prove any material allegation of both paragraphs they should find for the defendant, which, it is asserted, was wrong, because a material allegation of one paragraph might be unproven, and yet a complete cause of action made out under the other. We do not think that the instruction can be fairly so construed. It clearly and distinctly informed the jury that to defeat a recovery, for the cause mentioned, there must be a failure of proof as to one or more material allegations in both paragraphs, not one, of the complaint.

The fourth instruction was, "If you find that the injuries of which plaintiff complains were caused wholly or in part by his own acts or negligence, then he can not recover. It is the duty of a patient to observe and follow the reasonable directions of his physician and surgeon. If the plaintiff after having...