Kern v. Pullen

• Decision Date: 22 December 1931
• Citation: 6 P.2d 224,138 Or. 222
• Parties: KERN v. PULLEN.
• Court: Oregon Supreme Court

6 P.2d 224

138 Or. 222

KERN v. PULLEN.

Supreme Court of Oregon

December 22, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by C. A. Kern against James Pullen, wherein verdict was returned in plaintiff's favor and judgment entered thereon, after which, upon defendant's motion, the court set aside the judgment and verdict and ordered a new trial and plaintiff appeals.

Affirmed.

B. G Skulason, of Portland (E. D. Germain, of Longview, Wash., on the brief), for appellant.

E. K Oppenheimer, of Portland (Wilbur, Beckett, Howell & Oppenheimer, of Portland, on the brief), for respondent.

CAMPBELL, J.

Plaintiff brought action to recover damages for injuries received in an automobile collision at the intersection of Burnside street and Union avenue, in Portland, Or. A verdict of $10,000 was returned in his favor, and judgment entered thereon. The defendant moved to set aside the judgment and verdict and for a new trial, setting up all the statutory grounds. Counsel has specified in his brief the following as the errors committed: (1) Improper cross-examination of defendant's medical expert in permitting counsel to read to the witness extracts from medical works, and asking the witness if he agreed with the opinion of the authors; (2) failure of the court to give the statutory instructions; (3) refusal of the court to strike out portions of the testimony of the witness Dr. Foster; (4) refusal of the court to give certain of defendant's requested instructions.

The court granted the order, and set aside the judgment and verdict. Plaintiff appeals.

The record discloses that the court failed to give the statutory instructions, and counsel called his attention to said failure and saved an exception.

The jury are to be "instructed by the court of all proper occasions."

"1. That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence;

"2. That they are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds;

"3. That a witness false in one part of his testimony is to be distrusted in others;

"4. That the testimony of an accomplice ought to be viewed with distrust, and the oral admissions of a party with caution;

"5. That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence; that in criminal cases guilt shall be established beyond reasonable doubt;

"6. That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and therefore,

"7. That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust." Oregon Code 1930, § 9-2001.

The trial of every case, civil or criminal, is a "proper occasion" to give the instructions specified in subdivisions 1, 2, 3, 6, and 7. In subdivisions 4 and 5, only that part which relates to criminal cases should be given in criminal actions, and only that part which relates to civil cases should be given in civil cases.

When the court concluded his instructions, counsel for defendant called his attention to the fact that he failed to give those instructions. This was done before the jury retired. The Legislature has made plain provision that needs no construction or interpretation. It places a mandatory duty on the judge which he should discharge, and, when it is called to his attention, and he fails to observe this duty in that respect, the court has committed reversible error. The learned trial court made no mistake in granting a new trial. On this ground alone, the case must be affirmed.

There are some other questions presented that should be passed upon so as to avoid a second appeal.

During the trial, Dr. Foster was called as a witness for plaintiff, and, after qualifying as a medical expert, testified in effect: That he found plaintiff suffering from Parkinsonian syndrome, which he explained was the symptoms of said disease, also that said disease may be caused by a traumatic injury; that it was "precipitated" upon plaintiff by the injury to the head received in the accident under investigation. He cited no medical authority upon which he based his opinion. On cross-examination, defendant's counsel asked the witness:

"Q. Let me call your attention to this statement in Tice, a recognized authority, isn't that true? A. Well, yes; I suppose so.

"Q. Doesn't it say, 'The cerebral spinal fluid shows no pathological change?"'

This last question was not answered directly, but plaintiff made no objection to it.

When defendant was putting on his case, he called as witnesses Dr. Pease and Dr. Knox, who testified, in effect, contrary to the testimony of Dr. Foster in regard to the physical condition of plaintiff and its cause, and further testified that trauma was not one of the causes of Parkinson's disease. On cross-examination of Dr. Pease, plaintiff's counsel asked the following questions:

"Q. Now, doctor, *** I hold in my hand a book that has on its back 'Appleton's Medical Library, Practice of Medicine, Osler.' I suppose you are familiar with it? A. I am familiar with Osler.

"Q. And the date here at the bottom is 1899. Are you familiar with that work? A. I am familiar with Osler's work. I suppose this is Osler's book published by Appleton and Company. ***

"Q. How does he stand in the profession?"

This question was objected to, and after some colloquy between counsel and the court, wherein the court intimated that the question was probably a preliminary matter. Counsel for plaintiff proceeded:

"Q. Now, doctor, I want to read you from this work that I have been describing to you. From page 1076, under the head of 'Second; Paralysis agitans; in parenthesis Parkinson's disease; shaking palsy,' and ask you whether or not you agree with what this writer says here."

This question was objected to by counsel for defendant and the objection overruled, but the question was not answered, and counsel for plaintiff proceeded and read from the book a definition of Parkinson's disease, which definition ended, "Among the exciting causes may be mentioned exposure to cold and wet, and business worries and anxieties. In some instances the disease has followed directly upon severe mental shock or trauma."

"Q. Do you agree with that or not? A. That is not very clear. I think that is about as much as is known about it. As I have said before, this question of trauma, I have never seen Parkinson's disease due to trauma, and I do not know of others who attribute Parkinson's disease due to trauma. ***

"Q. But, Dr. Pease, isn't it true that this statement that this Dr. William Osler makes is in accordance with the statements found in the best textbooks on this subject in this country. A. Yes, sir; quite true."

Practically the same questions were asked Dr. Knox on cross-examination, except that a different authority (Tice, Vol. 10, Practice of Medicine) was used. The doctor stated that the works from which plaintiff's counsel was reading are recognized by the profession as standard works on the subject under discussion by the witnesses.

We waive the question of sportsmanship of the unwillingness to accord the same privilege to an opponent that had been assumed by the objector. The authorities are apparently hopelessly at odds on how far counsel may go in cross-examination of witnesses who, by their own testimony, qualify themselves as experts on the subject on which they testify, in using the works of authors recognized as standard authorities by the witnesses under examination, and by the profession to which such witnesses belong. The weight of authority is that in examination in chief "It is error to permit plaintiff to read to his medical witnesses *** extracts from a standard work on surgery, and then to ask them if what was so read corresponds with their own judgment." Lilley v. Parkinson, 91 Cal. 655, 27 P. 1091, and cases therein cited; Scott v. Astoria Railroad Company, 43 Or. 39, 72 P. 594, 62 L. R. A. 543, 99 Am. St. Rep. 710.

One of the cases frequently cited as authority by courts and text-writers, to the effect that books may not be read to the jury, is Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401, a murder case in which the witness, "Called by the defence as an expert on the subject of blood-stains, having said that in his opinion it was impossible to determine with certainty in the case of a stain that had been dried upon clothing seven days, whether it was human blood, was asked if he coincided with the views of Dr. Taylor, as expressed in Taylor's Medical Jurisprudence, which book was passed to the witness. The counsel then proposed that a certain paragraph upon that point from the book, with which the witness concurred in opinion, should be read to the jury by the witness; but the court excluded it."

In passing on that question, the Supreme Court said: "The refusal to allow a witness to read extracts from a work on medical jurisprudence, was in accordance with the well settled practice in this Commonwealth. Washburn v. Cuddihy, 8 Gray, 430; Commonwealth v. Wilson, 1 Gray, 337."

When we turn to Washburn v. Cuddihy, supra, a case arising out of a...