The Order of United Commercial Travelers of America v. Barnes

• Decision Date: 11 May 1907
• Docket Number: 15,005
• Citation: 90 P. 293,75 Kan. 720
• Parties: THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. EZEKIEL BARNES
• Court: Kansas Supreme Court

90 P. 293

75 Kan. 720

THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. EZEKIEL BARNES

No. 15,005

Supreme Court of Kansas

May 11, 1907

Decided January, 1907.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Hypothetical Questions. Hypothetical questions put to expert witnesses should be based upon such facts only as the evidence tends to prove, and if, as to any material hypothesis, such question is without the support of evidence, it should be excluded. It may not be required that the question be based upon conceded facts nor that it embrace all the facts of which there is evidence; neither is technical accuracy required in the framing of the question but no material exaggeration or perversion of facts assumed is permissible.

2. EVIDENCE--Same. Each party has a right to assume, so far as there is any justification in the evidence, that the facts will be found in accordance with his theory and against the theory of the opposite party, and is entitled to frame hypothetical questions in accordance with such assumption.

3. EVIDENCE--Same. The evidence and circumstances in different cases are so variant and the danger of confusing rather than assisting a jury in arriving at the truth is so great in this class of evidence that only general rules as to permissible questions should be prescribed. That justice may be subserved, a wide discretion rests in the trial judge.

4. EVIDENCE--Opinion of Non-expert Witness as to Mental Condition of Another. Non-expert witnesses shown to have had especial opportunities of observation are allowed to give opinion evidence of the mental condition of one under investigation in this respect, having first stated the facts upon which such opinions are based, or without stating such facts when opportunity is given to cross-examine in reference thereto.

J. C. Rosenberger, Kersey Coates Reed, and J. E. Sater, for plaintiff in error.

A. L. Berger, and Winfield Freeman, for defendant in error.

OPINION

SMITH, J.:

This case was brought here for the review of a former judgment therein, and after a decision was rendered a rehearing was granted and a second decision was filed. A general statement of the facts will be found by referring to these opinions, reported in 72 Kan. 293, 80 P. 1020, and 72 Kan. 306, 82 P. 1099, under the same title the case now bears.

On a second trial the jury returned a general verdict in favor of Barnes for $ 1498.25, and made special findings of fact on questions submitted to them by the court. The defendant's motion for a new trial was denied, and judgment was rendered for the plaintiff in accordance with the verdict. The special questions and answers are as follow:

"(1) Ques. Did plaintiff swallow a pin? Ans. Yes.

"(2) Q. If your answer to the last question be 'Yes,' state on what date plaintiff swallowed the pin. A. On or about July 23, 1902.

"(3) Q. If your answer be 'Yes' to question No. 1, did plaintiff when he swallowed the pin know that he had done so? A. No.

"(4) Q. If you say plaintiff swallowed the pin, did he do so intentionally or accidentally? A. Accidentally.

"(5) Q. If your answer be 'Yes' to question No. 1, was the swallowing of the pin the sole and only cause of plaintiff's disability or was it due partly to some preexisting sickness and partly to the pin? A. Solely to the pin.

"(6) Q. State whether plaintiff's disability was caused by such sickness, if any, alone, or by swallowing the pin alone, or was it due to both sickness and swallowing the pin in conjunction with one another? A. By swallowing the pin alone.

"(7) Q. On what date did plaintiff begin first to attend to some part or portion of the business pertaining to his occupation? A. Not yet able to attend to business."

Although not all discussed in the former opinions, many of the questions now presented were necessarily considered by the court at those hearings and were determined adversely to the defendant. The judgment being then reversed and a new trial awarded, this court, as in duty bound, indicated in the opinions the respects in which it considered the court below had erred, that errors might not be repeated, and inferentially at least approved the proceedings in all other respects. The evidence to support the claim of Barnes is almost identical with the evidence before, with some additional expert testimony. It appears to be weakened, if at all, only by the proper limitation of the purpose for which statements made in the notice and claim for indemnity could be considered by the jury.

It seems pretty late, then, to discuss the first assignment of error--that the demurrer to plaintiff's evidence should have been sustained and peremptory instruction given to find for defendant. Had this been the situation this court should have returned the case with instructions to render judgment for the defendant. It was not and is not the situation. True, the evidence is not very strong, and inferences must be largely relied on, but it legitimately affords the basis for all inferences necessary to debar the ruling asked. It is also true that the evidence might have been more satisfactory had the plaintiff testified and told what, if anything, he knew of the facts in issue. There is no legal obligation, however, upon a party to a civil action to produce any particular evidence. He may produce as much as he chooses, or none whatever, and take the consequences. The legal rule is ordinarily sufficient to protect the adverse party, and he may properly have the jury instructed that if evidence material to the issues is shown to be particularly within the possession and control of either party to the action, and he has neither produced it nor accounted for the failure so to do, it is to be presumed that such evidence, if produced, would not be to the advantage of such party.

The second contention is that the court erred in giving instruction No. 3. The legal question therein involved was necessarily involved and decided on the former appeal, except it is said the court submitted the question to the jury whether the plaintiff "accidentally and unconsciously swallowed a metal pin" when there was no evidence upon which an answer, either affirmative or negative, could be based. That he emitted the pin from his stomach is some evidence that he swallowed it, and the somewhat speedy recovery from retching and vomiting, which is shown to have persisted prior to the emission of the pin, is some evidence that the pin was the cause thereof. The ignorance of several eminent physicians and surgeons who repeatedly examined Barnes as to the cause of the malady, at a time when it would seem the strongest possible motive would have impelled him to tell them if he knew, indicates that he neither purposely nor consciously swallowed the pin.

It is tacitly admitted that Barnes should not be barred of his claim by reason of his failure to give notice of the accident during the time he is shown to have been mentally incapable of doing so, but it is urged that for more than ten days, even some weeks, after the alleged time of the accident his mind was clear and he should then have given the notice. It is sufficient to say that if the evidence tends to prove anything it is that during all that time neither Barnes nor any one connected with him knew that an accident had occurred or what was the cause of his malady.

It is plausibly said that in this instruction the court submitted to the jury for its determination the legal question whether the plaintiff had "made claim for compensation therefor, in accordance with the constitution and by-laws of the defendant." The instruction, however, contained a recital of the facts which it would be necessary for the jury to find to justify this conclusion, and therefore is not prejudicial in this respect.

Several assignments of error are based upon the overruling of objections to a hypothetical question propounded to several physicians and surgeons for the purpose of eliciting their opinion as to the cause of plaintiff's physical and mental condition from about the time of the alleged accident to about six or seven months thereafter. The question in the type and on a page the size of one in our reports would be about a page and five lines in length. It was not entirely accurate in its assumptions, nor were all the facts assumed which the evidence in the case tended to prove. Yet it was a fair resume of the facts, supported by some evidence which plaintiff's counsel evidently considered as favorable to his version of the case. There were omissions of some facts supported by some evidence which would be regarded as unfavorable to plaintiff's theory of the case. (As the evidence cannot be arrayed for comparison, it is believed this statement will give the reader a better idea of the questions involved than would a full copy of the hypothetical question.)

The objections to the question were: that it was too long; it was not a fair summing up of the evidence; it eliminated important facts supported by evidence, and included facts not so supported;...