Lambertson v. Consol. Traction Co.

• Decision Date: 15 November 1897
• Citation: 60 N.J.L. 452,38 A. 683
• Parties: LAMBERTSON v. CONSOLIDATED TRACTION CO.
• Court: New Jersey Supreme Court

38 A. 683

60 N.J.L. 452

LAMBERTSON

v. CONSOLIDATED TRACTION CO.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1897.

(Syllabus by the Court.)

Error to supreme court.

Action by Charles Lambertson against the Consolidated Traction Company. From a judgment of the supreme court (36 Atl. 100) affirming a judgment for plaintiff, defendant brings error. Affirmed.

Depue & Parker, for plaintiff in error.

Samuel Kalisch, for defendant in error.

DIXON, J. In an action for personal injuries, brought in the Essex circuit, the plaintiff recovered a judgment which, having been affirmed in the supreme court (36 Atl. 100), is now before us on writ of error. Of the matters involved, we think none requires consideration other than that received in the supreme court, except the assignments of error based upon the judge's refusal to charge as requested concerning the opinions of the medieal experts. The following requests will show the precise points for consideration: "The testimony of a physician called to examine the plaintiff at a recent period, with a view solely to giving testimony at the trial, as to the extent of an injury and its probable duration and effect, cannot be regarded by the jury in any case in which the opinion of the witness is founded, in whole or in part, upon statements made by the plaintiff of circumstances not proved to be true or to exist, and upon symptoms or conditions which existed at a former period, and of which the physician has no knowledge, except from what the plaintiff told him." "The opinion of a physician who has no knowledge of the ease, except that derived from an examination made in anticipation and with a view of testifying on the trial of a cause where the physical condition of the person examined is a material fact, cannot be regarded if that opinion is founded, in whole or in part, on statements of previous physical condition and suffering and pain, of which proof was not made at the trial." It appears that, about a week before the trial, a physician was called in by the plaintiff to examine his bodily condition, in order that the physician might form an opinion to which he could testify at the trial as an expert witness on the plaintiff's behalf; and, in so testifying, the physician, having stated that "there was not anything to discover by the examination except the symptoms as he [the plaintiff] expresed them," was allowed to tell what symptoms the plaintiff had narrated. Although this testimony was objected to, no exception seems to have been sealed, and there is no assignment of error upon its admission. Its only bearing now, therefore, is upon the requests to charge.

The testimony itself, we think, was illegal. It is well settled that the declarations of a patient as to his symptoms, made to his physician or surgeon for the purpose of treatment,...