Jones v. City of Caldwell

• Citation: 20 Idaho 5,116 P. 110
• Parties: E. C. JONES and ELIZABETH JONES, Appellants, v. CITY OF CALDWELL, a Municipal Corporation, Respondent
• Decision Date: 22 May 1911
• Court: United States State Supreme Court of Idaho

116 P. 110

20 Idaho 5

E. C. JONES and ELIZABETH JONES, Appellants, v. CITY OF CALDWELL, a Municipal Corporation, Respondent

Supreme Court of Idaho

May 22, 1911

PERSONAL INJURIES-TWO DEFENSES-SEPARATE COUNTS-DAMAGES-DEFECTIVE SIDEWALK IN CITY-HYPOTHETICAL QUESTION-OPINION OF WITNESS-INSTRUCTIONS-BASED ON EVIDENCE-TWO PHYSICIANS-PRIVILEGED INFORMATION-WAIVER OF PRIVILEGE AS TO ONE-NOT WAIVER AS TO OTHER.

(Syllabus by the court.)

1. Under the provisions of sec. 4187, Rev. Codes, the defendant may set up as many defenses or counterclaims as he may have but such defenses or counterclaims must be separately stated in separate counts.

2. A hypothetical question which contains facts that are proved or claimed to be proved by either party may be put to an expert for the purpose of obtaining his opinion upon such facts, and by so doing such expert witness does not usurp the province of the jury, as the jury is not compelled to accept the opinions of such expert witness against their will, but will weigh such expert opinions as other evidence is weighed by them.

3. Held, that it was error to give that part of instruction No 13 which reads as follows: "And if you find and believe that the said plaintiff was in bad health, and that her generative organs were infected by gonorrhoea or other loathsome diseases at the time of the injury complained of notwithstanding that the same might have been aggravated by the fall on the sidewalk, you can only find for the plaintiff to the extent that her troubles were aggravated by said fall," as there was no evidence whatever in the record to the effect that the plaintiff was in bad health or that her generative organs were infected with gonorrhoea or other loathsome disease.

4. It was error for the court to exclude certain evidence and then give certain instructions based on such excluded evidence.

5. It was error for the court to refuse to give the following requested instruction: "If you find from the evidence that the plaintiff was caused to fall by a defect in the sidewalk negligently permitted to exist by the defendant, the defendant is responsible for all ill-effects which naturally and necessarily follow the injury in the condition of health in which plaintiff then was at the time of such fall, and it is no defense that such injury may have been aggravated and rendered more difficult to cure by reason of plaintiff's state of health at that time, or that by reason of latent disease the injuries were rendered more serious to her than they would have been to a person in robust health." Said instruction contains a correct statement of the law upon some of the evidence given on the trial and should have been given.

6. If the latent condition itself did not cause pain, suffering etc., to the patient, but such condition plus the accident caused such pain, the fall and not the condition is the proximate cause of the injury.

7. The plaintiff may, under the provisions of subd. 4, sec. 5958, Rev. Codes, waive her right to secrecy in respect to one of her physicians, but such waiver does not operate as a waiver of her right to object to the testimony of another of her physicians called by the defendant.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. E. A. Walters, Presiding Judge.

Action to recover damages for personal injuries on account of defective sidewalk. Judgment for plaintiffs. Both parties appeal. Judgment reversed.

Judgment reversed and a new trial granted. Costs of both appeals awarded to the plaintiffs.

K. I. Perky and W. A. Stone, for Appellants.

Instructions must be based on the evidence, and it is error to give any instructions not so predicated. (11 Ency. Pl. & Pr. 128-130; 13 Cyc. 238.)

If the latent condition of itself did not cause pain, suffering, etc., but such condition plus the fall caused such pain and suffering, the fall and not the latent condition is, in law, the proximate cause. (Owens v. Kansas City & R. R. Co., 95 Mo. 169, 6 Am. St. 39, 8 S.W. 350-352.)

When the attending physicians are called at different times for different purposes, and at different periods of time, and a different degree of confidence is placed by the patient in the various physicians, the patient has a right to call any one of them as a witness without waiving his privilege as to the others. (Dotton v. Village of Albion, 57 Mich. 575, 24 N.W. 786; Baxter v. City of Cedar Rapids, 103 Iowa 599, 72 N.W. 790; Mellor v. Missouri P. Ry. Co., 105 Mo. 455, 16 S.W. 849, 10 L. R. A. 36; Griffin v. Griffin, 125 Ill. 430, 17 N.E. 782; Morris v. N. Y. O. & W. Ry. Co., 148 N.Y. 88, 51 Am. St. 675, 42 N.E. 410; Metropolitan St. Ry. Co. v. Jacobi, 112 F. 924, 50 C. C. A. 619; Hope v. Troy & Luisinburg R. R. Co., 40 Hun (N. Y.), 438.)

John J. Plowhead, for Respondent.

The case of Morris v. Ry. Co., 148 N.Y. 88, 51 Am. St. 675, 42 N.E. 410, states the correct rule. This case was decided on the point in controversy, and on that point alone, and it was there held that the privilege was waived. Our statute (Rev. Codes, sec. 5958, par. 4) does not throw any light on this subject as far as construing the matter at issue is concerned. If justice is to be done to the parties litigant here, and if plaintiff avails herself of the testimony of Dr. Miller and thereby waives her privilege in regard to him, she also waives her privilege in regard to the testimony of Dr. Stewart, who was asked to testify in regard to the same facts and circumstances concerning which Dr. Miller testified. Dr. Miller stated what his opinion was and Dr. Stewart should be allowed to do the same thing. As stated in the New York case, any other construction would work a great injustice on this defendant.

SULLIVAN, J. Ailshie, Presiding J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover damages against the city of Caldwell for an injury alleged to have been sustained by the plaintiff, Elizabeth Jones, by reason of a defective sidewalk. The accident, it is alleged, occurred on the 27th day of December, 1909.

The answer denies the allegations of the complaint and alleges as a defense that said plaintiff was guilty of contributory negligence.

On the issues thus made the case was tried by the court with a jury and verdict was returned and judgment entered in favor of the plaintiff in the sum of $ 850. Both plaintiffs and defendant have appealed from the judgment, and will be referred to in this opinion as plaintiffs and defendant.

It is conceded by the city that there is no testimony to contradict the evidence of the plaintiff Elizabeth Jones, that she stepped on a broken board and fell to the sidewalk; but the city attempted to show that the injury alleged to have been sustained by said plaintiff was not the result of said fall, but was due principally to the fact that said plaintiff had an infectious disease. The bill of exceptions is joint and contains the exceptions of both parties.

It is first contended by counsel for the plaintiffs that the court erred in refusing to compel the defendant to elect between the two defenses which it is claimed are set up in one count of the answer. The allegations of the complaint are denied specifically, and as a further defense it is alleged that if plaintiff sustained any injury whatever from said fall, the same was caused by her own negligence and carelessness. Under the provisions of sec. 4187, Rev. Codes, the defendant may set up as many defenses or counterclaims as he may have, but such defenses or counterclaims must be separately stated, that is, in separate counts, and good pleading requires separate defenses to be stated in separate counts. This court held in Fox v. Rogers, 6 Idaho 710, 59 P. 538, that the commingling of several causes of action in one count of the complaint is prohibited by the code, but that such commingling was not ground for demurrer, the remedy in such cases being by motion to strike out or compel the pleader to elect. Where a defense consists of specific denials of all the material allegations of the complaint and thereafter sets up some other defense, each of said defenses should be pleaded in separate counts, and the court erred in not requiring the defendant on said motion of the plaintiffs to elect upon which of said causes of defense he would proceed to trial, or to plead each defense in a separate count.

There is but little dispute as to the facts proven on the trial. It appears from the evidence that said plaintiff was walking along the street of said city in the ordinary manner at about 8 o'clock in the evening, and stepped into a hole caused by a broken board in the sidewalk, and fell on her face to the sidewalk. The evidence shows that she was a woman in good health prior to the accident; it also shows that she had not been free from pain from the date of the accident up to the time of the trial, which was about ten months after the accident occurred, and that an operation was performed to relieve her, which accomplished but little benefit. On the trial the only defense offered by the city was that the plaintiff was suffering from said infectious disease at the time of the injury, and that the injury which she sustained from said fall was due principally to such disease.

The overruling of plaintiff's objection to the following hypothetical questions is assigned as error:

"Assuming that the plaintiff in this case, Elizabeth Jones, while passing along and upon a sidewalk in the city of Caldwell Idaho, stepped into a hole in said sidewalk, said hole being about fourteen or sixteen inches long, about five inches wide and about six inches deep, and assuming that she fell forward on said sidewalk, and that her right foot after she had fallen remained inside said hole, and...