Shawnee Gas & Elec. Co. v. Hunt
| Decision Date | 19 March 1912 |
| Citation | 122 P. 673,32 Okla. 368,1912 OK 276 |
| Parties | SHAWNEE GAS & ELECTRIC CO. v. HUNT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A graduate nurse who has never nursed a case of epilepsy is not competent to testify as to whether certain symptoms indicate epilepsy; it not appearing from the evidence that nurses, as part of their training as such, are taught to diagnose diseases.
It is proper to ask a witness who testified as an expert what causes, in his opinion, produced certain results. Such a question is not objectionable as calling for a conclusion of the witness, nor as invading the province of the jury.
For a hypothetical question held not improper, see opinion.
In a suit for personal injuries brought by a child 11 years of age, it is error to instruct the jury to take into consideration his loss of time, the effect the injury will have on his ability to follow his trade or calling, without limiting in the instruction his recovery on this account to such time as he would become entitled to his earnings as against his parents.
Where the testimony shows that plaintiff in a personal injury suit had been treated by physicians for some time, but does not show the value of their services, it is error to instruct the jury in assessing damages to take into consideration the medical care and attention plaintiff received, so far as shown by the evidence.
(Additional Syllabus by Editorial Staff.)
A mere statement to an expert witness introductory to a hypothetical question as to what the examiner intends to state in the question, adding nothing to the facts stated, does not render the question improper.
In an action for personal injuries, a hypothetical question as to the cause of plaintiff's condition, containing more than 500 words, is not improper if intelligible, though somewhat complicated and not entirely grammatical.
A hypothetical question to an expert is not objectionable as assuming material facts which the evidence does not fully tend to establish, where there was some evidence of all the material facts assumed.
Commissioners' Opinion, Division No. 2. Error from Superior Court Pottowatomie County; George C. Abernathy, Judge.
Action by William O. Hunt against the Shawnee Gas & Electric Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Shartel Keaton & Wells, of Oklahoma City, and Edward Howell, of Shawnee, for plaintiff in error.
Blakeney & Maxey, of Muskogee, for defendant in error.
This is an appeal from the superior court of Pottowatomie county. The plaintiff, William O. Hunt, brought suit against the Shawnee Gas & Electric Company to recover damages for personal injuries alleged to have been sustained by coming in contact with a guy wire, or a wire clothes line in contact with the guy wire. There was a judgment for plaintiff in the lower court.
The defendant assigns as error that Mrs. Hunt, mother of plaintiff, was permitted to testify at the trial that her son was suffering from an epileptic condition. She based this opinion as to epileptic condition upon the fact that there were circles around his eyes: that his eyes were red; that his lips would turn black or dark; and his face unusually white. Mrs. Hunt is a graduate nurse, but had never nursed in cases of epilepsy, though she had nursed in families, some of the members of which were epileptics. Her testimony as an expert as to what these symptoms indicated was not admissible. There was no proof in the case showing that nurses, as part of their training, are required to learn to diagnose diseases. There being no proof of that sort, the court could not presume that a nurse must learn the diagnosis of diseases as part of her training as such. It cannot be denied, as contended by defendant in error, that a nurse is competent to testify that a person has had a "fit," but it is not contended in this case that the plaintiff had what is commonly called a "fit," but merely epileptic conditions, as shown by certain symptoms. As to this, the nurse was not competent to testify under the proof offered. Any person could testify as to whether or not another had had a "fit," but it might require some considerable study of diseases to be able to testify whether a "fit" was of epileptic character.
The cases of Mason v. Fuller, 45 Vt. 29, and Thayer v. Davis, 38 Vt. 163, cited by defendant in error as sustaining the view that a nurse could testify as an expert are not in point. Those were cases where nurses, who had waited on women in confinement, were permitted to testify as to whether or not births were premature. Such a question is determined upon physical facts, easily seen and comprehended, and could be learned by any person from very little observation, and without any professional training. The cases are entirely different. It is believed that it is safer to confine expert testimony, in which the witness is permitted to give an opinion, to those persons who have had special training in the diagnosis and treatment of diseases. Wigmore on Evidence, § 687; Chamberlayne on Evidence, § 913; Osborne v. Troup, 60 Conn. 485, 23 A. 157.
Of course a person without professional skill, who has observed another whose condition is under investigation, may be permitted to testify as to whether or not his condition is normal or abnormal, as for instance whether he is sane or insane, but it is not safe to permit any one except physicians to make distinctions as to what particular diseases or ailment the abnormality points to, as for instance with what particular form of insanity a patient is affected.
The following hypothetical question was asked Dr. Blickensderfer witness on behalf of plaintiff: "Doctor, I want to state the conditions of this alleged shock, as they were supposed to have been on the 10th day of June, 1908, and prior to that so the hypothetical question will be based upon the shock received at that time, and I want to ask you this question: Would a boy 10 years and 10 months old, who had been a normal child from birth to such age, and who had never had the diphtheria, scarlet fever, pneumonia, septis, never suffered from any form of blood poison, toxine, St. Vitus dance, if such boy being normal, as other boys of his age, of the average weight and stature, exhibiting normal desires for play and association with other boys as other boys of his age do; if upon the 10th day of June, 1908, should receive an electric shock on a live wire connected or in contact with a wire carrying 2,300 volts, being at this time accompanied with an associate and playfellow of about the same age, who received at the same time a shock causing his death, from coming in contact with the same wire or a wire connected with the same wire and of about the same voltage, in a few feet of this boy; and upon being removed from the place of accident in a semiconscious, dizzy, and dazed condition where his mother was, who at once, or within 20 minutes, dug a hole, placed his feet therein, and who at the time was under the impression that he was being buried in such hole, and who at the time of the shock felt the sensation of needles and pins sticking in him, and a short time afterwards, within an hour or probably a half hour, when seen on the place, was in a semiconscious condition, his lips blue, his face around and under his eyes black, the pupils of his eyes dilated; remained some time in this semiconscious condition, and subsequently had spells of dizziness and pains in the region of his heart, and epileptic symptoms at night; wrings his arms at night; and at these times has difficulty in breathing, is treated by sitting up and being fanned, and at these times his extremities are cold...
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