Sheldon v. Wright

• Decision Date: 05 October 1907
• Citation: 80 Vt. 298,67 A. 807
• Parties: SHELDON v. WRIGHT.
• Court: Vermont Supreme Court

67 A. 807

80 Vt. 298

SHELDON

v. WRIGHT.

Supreme Court of Vermont. Orleans.

Oct. 5, 1907.

Exceptions from Orleans County Court; Loveland Munson, Judge.

Action by W. C. Sheldon against J. F. Wright. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and TYLER, WATSON, HASELTON, and POWERS, JJ.

Young & Young, for plaintiff. W. W. Miles, B. D. Carpenter, and J. W. Redmond, for defendant.

HASELTON, J. This was an action of case for claimed malpractice. In the evening of January 30, 1904, the plaintiff, Mr. Sheldon, at Barton Landing, where he lived and was in the employ of the E. L. Chandler Company, suffered a fracture of the tibia of his right leg. The fracture was oblique as distinguished from transverse. The plaintiff's family physician, Dr. Parlin, was forthwith called, and then set the fractured bone. Dr. Parlin attended to the leg until February 2, 1904, when Dr. Wright, the defendant, was called by Mr. Sheldon, and took the case. Dr. Wright was a physician and surgeon in practice at Barton Landing, and was called by Mr. Sheldon, because his employer, the Chandler Company, whose contract duty it was to furnish the medical and surgical services required, designated Dr. Wright to perform them. Subject to objection and exception, the plaintiff was allowed to take the testimony of the defendant, to the effect that he drew a yearly salary from the company, and that his compensation did not depend upon the number of cases he treated for the company, except that in some cases the company added to his salary. In this there was no error. The plaintiff had the right to call the defendant to the witness stand, and, with the privileges of cross-examination, to inquire into his relations to this case, and, since his relations thereto involved his relations to the Chandler Company, to inquire into those so far as the above recital shows that they were inquired into. Subject to objection and exception, the plaintiff testified that, some time after his case had been discharged by the defendant, Dr. Longe of Newport put a plaster cast upon the leg, that this was worn about two weeks, and that it assisted the plaintiff in getting about. This testimony was properly heard. The history of the leg from the time of the fracture to the trial, the treatment it had received, and the results thereof, whether beneficial or injurious, were calculated to throw light both upon the question of liability and upon the question of damages. After giving his testimony as to the Longe cast, the plaintiff gave similar testimony as to a cast put on by Dr. Hardwick, and as to one put on by Dr. Parlin. While the testimony as to the Hardwick and Parlin casts was being taken, the defendant's counsel at three different times uttered the word "exception." The course taken by counsel called for no ruling by the court, the court made none, and the defendant has nothing to complain of. If counsel really want evidence excluded, it must be objected to. Then, if the objection made is overruled, the objecting party may take an exception, and, if the objection is sustained, the other party may take an exception. In the taking of testimony the occasional ejaculation of the word "exception" is in the nature of a running and unfavorable comment on the proceedings, and nothing more. It raises no question for the decision of the court and reserves nothing.

Other claimed exceptions to the admission of evidence stand as do those last considered. It may be said here, once for all, that those are not further noticed. However, all the substantial questions sought to be raised by the defendant were at some stage of the trial properly raised and so have been considered.

Subject to objection and exception, the plaintiff testified that he was not able to run and travel on the leg as formerly. The objection was that the condition of the leg at the time of the trial, its condition as to strength, and how it compared with what it was before it was broken had no tendency to show any negligence on the part of the defendant. But, upon any theory as to what would and what would not tend to show negligence, it would have been impracticable, undesirable, and improper to keep from the jury the condition of the leg at the time of the trial, its condition before the fracture, and the nature of the fracture, to say no more. These things were essential to make intelligible the expert evidence on both sides.

At a point in the examination of the plaintiff, his counsel expressed a wish to then show the leg to the jury. Thereupon the court suggested that the exhibition be made in the judges' room, and said that for that purpose the judges' room would be treated as a part of the courtroom. Arrangements as to the presence of counsel and medical men were made at the bench, and the jury were sent into the judges' room, whither they were accompanied by two of the defendant's counsel, who remained there until the jury returned. After a little, the defendant went in. Soon after that the attention of the court was called to the fact that the door into the judges' room was closed, whereupon the court had it partly opened, but not enough so that any one in the courtroom could see the proceedings in the judges' room. The presiding judge remained at the bench, the end of which was but a few feet from the connecting door, until the jury returned. No objection was made to the examination of the leg by the jury, but we think that a fair construction of the recital in the bill of exceptions is that it was under the defendant's objection and exception that the examination was had in the judges' room. It does not clearly appear what motive influenced the court in directing the observation of the leg to be had in the judges' room, although there may have been some reason not made apparent. In any event, it would have been well for the court to have been in the judges' room with the jury. However, it is clear that the defendant's cause was not harmed in consequence of the place of the examination. Had anything improper taken place or been attempted, the defendant's counsel in the jury room could have made an objection to the court as readily as though the proceedings had taken place with the jurymen in their seats. Indeed, it often happens that a large map or plan is displayed and explained to the jury in such a manner that the jurymen, or a part of them, are screened from the view of the court, which then has little, if any more, opportunity of knowing what is going on than the court had during the episode in question. It is not infrequent that things are clone in the presence of the jury which the court does not see, and still oftener, perhaps, that things are said which the court does not hear. Desirable as it is that an incident like that under consideration should be avoided, error cannot be predicated upon anything that appears in reference thereto. The manner in which a trial court meets the various emergencies that it has to encounter is not to be judged by any Utopian standard. Here the attitude, position, and supervision of the court were such that in a practical sense the proceedings were all before the court. The circumstance of the shutting of the door has no substantial weight, since it fairly appears that it was no sooner shut than it was opened.

In response to questions put to him on cross-examination the plaintiff testified that he went to Boston in May, 1904; that he went there to see what he could have done for his leg; that he saw a physician there but that he had nothing done for his leg. The fact that in May, 1904, the plaintiff's leg was in such a condition that he was able to go to Boston, was probably material, but it is difficult to understand why testimony was elicited to the effect that he went there to see what he could have done for his leg, that he saw a physician and had nothing done, unless it was that the jury might infer that the physician thought the leg well enough as it was. However this may be, the plaintiff's counsel could not be expected to leave the matter as defendant's counsel had left it and, in fact, they were not content so to leave it. To show what ensued we quote from the exceptions as follows: "On redirect examination the plaintiff was allowed to testify and did testify as follows, subject to the objection and exception of the defendant: 'Q. Why didn't you have anything done in Boston? (Redmond: We asked him if he went to Boston, and he answered it. We except if the answer relates to any conversation.) A. The doctor advised me not to have anything done at the present time, said he had got to cut that open— (The Court: This comes in subject to exception.) A. (continuing) He said he would have to cut it open, chisel the bone off, and wire it together, advised me not to have it done until cooler weather, blood poisoning was liable to set in; and he wanted $100 to do the job. Q. It was because of the advice he gave you, you did not then attempt to have it done? A. Yes, sir.'" The question, "Why didn't you have anything done in Boston," was a proper one. The answer went beyond what was proper, and was objectionable because of its hearsay character. It is argued by the plaintiff that the well-established rule that an exception does not lie to an improper answer to a proper question applies here. The rule invoked is certainly well established. Lynds v. Plymouth, 73 Vt. 216, 50 Atl. 1083; Plumer v. Bicker, 71 Vt. 114, 41 Atl. 1045, 70 Am. St. Rep. 757; Hawkes v. Chester, 70 Vt. 273, 40 Atl. 727; State v. Marsh, 70 Vt. 288, 40 Atl. 836; Cutler v. Skeels, 69 Vt. 154, 37 Atl. 228; Foster's Ex'r v. Dickerson, 64 Vt. 233, 24 Atl. 253; Lawrence v. Graves' Estate, CO Vt. 657, 15 Atl. 342; Frary v. Gusha, 59 Vt. 257, 9 Atl. 549; Houston v. Russell, 52 Vt. 110; Morse v. Richmond, 42 Vt. 539; Randolph v. Woodstock, 35 Vt. 291. This rule, while well established, is not strictly applicable here since the exceptions recite that the...