Smith v. Missouri, K. & T. Ry. Co.
Decision Date | 03 December 1918 |
Docket Number | 9177. |
Citation | 185 P. 70,76 Okla. 303,1918 OK 679 |
Parties | SMITH v. MISSOURI, K. & T. RY. CO. |
Court | Oklahoma Supreme Court |
On Rehearing, November 18, 1919.
Syllabus by the Court.
An attorney has no right to cross-examine a witness, except as to facts and circumstances connected with the matter stated in his direct examination. If he wishes to examine him on other matters, he must do so by making the witness his own and calling him as such in the subsequent progress of the case.
From an examination of the entire record in the instant case we are of the opinion that the improper cross-examination of the plaintiff's witnesses did probably result in a miscarriage of justice, and was sufficient grounds for awarding a venire facias de novo.
On Rehearing.
Where a party has used reasonable care in selecting a physician or surgeon, but owing to unskillful treatment the injury has been increased, the party causing the original injury will be held liable in damages for the latter; and the issue is not whether the physician or surgeon was, in fact, a man of high skill, but whether he bore such reputation as would justify the plaintiff in calling for his services under the obligation to exercise good faith in the choice of his physician.
Commissioners' Opinion, Division No. 2
Error from District Court, Oklahoma County; Edward Dewees Oldfield Judge.
Action by W. L. Smith against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions.
Asp Snyder, Owen & Lybrand, of Oklahoma City, for plaintiff in error.
Clifford L. Jackson, W. R. Allen, and M. D. Green, all of Muskogee for defendant in error.
This is an appeal by the plaintiff in error, who was plaintiff below, from the judgment of the trial court, rendered in favor of the defendant in error, who was defendant below, upon the verdict of the jury in an action for personal injuries. The plaintiff at the time of the injury complained of was 51 years of age, and was engaged in selling insurance and in buying cotton seed, and was earning $150 per month, and lived at the city of Sulphur, Okl. The petition alleges the cause of action as follows:
The answer of the railway company was a general denial and a plea of negligence on the part of the plaintiff contributing to his injury, and the answer of the receivers of the company was of a similar nature. Upon the issues thus formed the case was submitted to the jury and a verdict returned for the defendant.
There are numerous assignments of error set out in the petition in error and supported by argument and voluminous citations of authorities in the brief, but as we view this case it is only necessary to consider two of these assignments, namely, the sixth, which reads:
"Said court erred in permitting the defendant over the objection and exception of the plaintiff, to extend the cross-examination of plaintiff's witnesses beyond the scope covered in their direct examination"
-and the ninth, which reads:
"Said court erred in the abuse of his discretion by which the plaintiff was prevented from having a fair trial."
The record discloses that immediately after the accident the plaintiff was conveyed to a hotel at Cleveland and a physician called, and his injured arm was treated and bandaged, and on the advice of this physician he returned to his home at Sulphur the following day; that there he called his family physician and a few days later a surgeon at Sulphur was called in, and these doctors treated the injury for something like a year; when a cure was not affected at the end of this time, another physician of a different school of medicine was called, and on his advice the plaintiff was sent to Oklahoma City, where an X-ray of his arm was taken, which disclosed a broken bone and a dislocated joint; that on the advice of the physician who had directed him to go to Oklahoma City he employed two or three specialists to treat the arm, who subsequently performed several operations thereon. When these specialists were called at the trial to testify in behalf of the plaintiff as to the character of his injury and the probable duration thereof, the defendant, on cross-examination of these witnesses, over the objection of the plaintiff, was permitted to attempt to show that the treatment that the plaintiff received from the doctors first called by him was not the proper treatment, and this character of cross-examination was carried to such an extent as to introduce a collateral issue in the case, one not raised by the pleadings, and the issue on trial, namely, the liability of the railway company for the plaintiff's injuries, was lost sight of, and the trial permitted to develop into a trial of the doctors. By reason of this irregular conduct of the trial the real issue before the court and jury was so obscured that the collateral issue was the one really tried by the jury, and upon which the verdict was returned for the railway company. Excerpts from the examination of Dr. Cunningham, one of the witnesses called by the plaintiff, will disclose the character of the cross-examination complained of:
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