Moberg v. Scott
| Decision Date | 13 January 1920 |
| Docket Number | No. 4589.,4589. |
| Citation | 42 S.D. 372,175 N.W. 559 |
| Parties | MOBERG v. SCOTT. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Frank Anderson, Judge.
Action by Nellie Moberg against H. F. Scott. From a judgment for plaintiff and an order denying a new trial, the defendant appeals. Affirmed.Thomas L. Arnold and Seth Teesdale, both of Aberdeen, for appellant.
Campbell & Walton, of Aberdeen, for respondent.
Action to recover actual and exemplary damages occasioned by plaintiff's loss of conjugal consortium during a period of illness preceding the death of plaintiff's husband, and for damages resulting from his death, which sickness and death were alleged to have been caused by defendant's unlawfully, willfully, maliciously, and knowingly furnishing the deceased with commodities of which opium was an ingredient. The complaint was upheld in Moberg v. Scott, 38 S. D. 423, 161 N. W. 998, L. R. A. 1917D, 732. Our holding in the above case is supported by the holding in Tidd v. Skinner, decided in 1919, and reported in 225 N. Y. 422, 122 N. E. 247, 3 A. L. R. 1145. See, also, notes 3 A. L. R. 1152. We refer to our former opinion for a full statement of the nature of this action. The answer was, in effect, a general denial. Verdict and judgment being for plaintiff, defendant appealed from such judgment and from an order denying a new trial.
[1] Appellant questioned the sufficiency of the evidence both by motions to direct verdict and, after verdict, by specifications of particulars, wherein it is claimed that the evidence was insufficient to support such verdict. We deem it unnecessary to review the evidence. It was largely circumstantial in its nature, but, while there was much conflict therein, there was ample from which the jury was warranted in finding that plaintiff's husband, for the last year or more of his life, was in a physical and mental condition unfitting him to give to his wife that aid, support, society, and companionship to which she was entitled, and which she had theretofore enjoyed; that such condition and the death which followed were caused by the husband's use of a drug containing opium; and that such drug was wrongfully, unlawfully, and knowingly furnished the husband by defendant.
[2][3] Appellant assigns error in the admission of answers to certain questions asked respondent and certain of her witnesses on direct examination, and in the refusal of the court to strike out the answers thereto; appellant contends that there was a lack of proper foundation for such evidence, and that it consisted largely of opinions and conclusions. As illustrative of the questions asked is the following, which was asked respondent after witness had testified to the fact of her marriage to deceased in 1905 and their living together thereafter: “What was the condition of Mr. Moberg's health up to about 1912?” Respondent contends that this and similar questions “called for scientific knowledge in research, which the witness did not possess, and she was not qualified to answer the questions propounded. ***” None of these witnesses were assuming to testify as experts. This was all the evidence of lay witnesses testifying as to their observations touching the health, general demeanor, etc., of deceased during the time of his alleged illness and prior thereto. That such evidence is competent is too well settled to need any citation of authority in support of its reception; but see Jones on Evidence, § 366 and cases cited thereto.
[4] Appellant contends that the court erred in allowing a physician, called by respondent, to give “his conclusions and opinions upon ultimate facts as to what produced the illness and death of the respondent's husband”; furthermore, he contends that there were no facts in evidence upon which an expert opinion could be based, and that the witness had not shown himself qualified to testify as an expert. With these last contentions we cannot agree. There were sufficient facts testified to by this very witness-matters claimed to have been observed by him-upon which to base his conclusions and opinions; moreover, there had been ample evidence to establish his qualification as an expert. One question asked was:
“In your treatment, continuing up to the time of his death, I wish you would state to the jury what in your judgment, what disease or malady he was suffering from.”
Appellant contends that, by receiving, in answer, this witness' opinion that deceased “was suffering from the effects of opium poisoning,” the court took from the jury the determination of one of the ultimate facts which should have been passed upon by such jury. Appellant cites State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191. Appellant would have presented for our determination an important question of practice if it had previously been presented to the trial court by a proper objection. The objection upon which appellant attempts to predicate this particular claim of error was:
“Objected to as incompetent, irrelevant, and immaterial, and no foundation laid, as the witness at this time has not shown himself qualified to testify as an expert, and assuming a fact in evidence which has not been proven.”
It will be seen that no part of the above objection called the attention of the trial court to the point now urged. The ground of objection now urged by appellant is, in effect, that such answer sought was incompetent, but it is a settled rule of practice in this state that an objection that evidence sought is “incompetent,” without specifying wherein the incompetency lies, presents nothing for a trial court's consideration. State v. Devers, 32 S. D. 473, 143 N. W. 364. The only exception to such rule is where it clearly appears that the objection could not have been obviated had the same been specifically pointed out. McCabe v. Desnoyers, 20 S. D. 581, 108 N. W. 341. A slight change in the wording of the question would have obviated the specific objection now urged. 11 R. C. L. 583-585. We do not want to be understood as intimating that the question and answer were properly subject to the specific objection now urged.
[5] Appellant contends the court erred in allowing proof that appellant had no license, as required by local ordinance, authorizing him to sell opium or drugs containing opium. We think such evidence competent, both because it negatives any right to sell even on a doctor's prescription and because it has a direct bearing upon the good faith of appellant, and therefore on the right of respondent to recover exemplary damages.
[6] Appellant contends that the court erred in receiving in evidence a large number of checks drawn by deceased in appellant's favor, and which appellant admitted were cashed by him at his store. These exhibits were, to our minds, practically immaterial. Respondent urges that they were offered to establish the fact, then not established, but afterwards clearly appearing, that deceased often visited appellant's drug store. But even though such exhibits were immaterial and should have been excluded, we fail to see wherein their receipt could in the slightest have prejudiced appellant.
[7] Respondent asked for $10,000 actual and $5,000 exemplary damages. Under the court's instructions the jury, if it believed the...
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