The Western Union Telegraph Company v. Morris

• Decision Date: 10 July 1903
• Docket Number: 13,147
• Citation: 67 Kan. 410,73 P. 108
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. FRANK MORRIS
• Court: Kansas Supreme Court

73 P. 108

67 Kan. 410

THE WESTERN UNION TELEGRAPH COMPANY v. FRANK MORRIS

No. 13,147

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Jackson district court; MARSHALL GEPHART, judge.

STATEMENT.

DAISY E. MORRIS is the wife of the defendant in error. On the morning of December 4, 1895, she commenced to feel ill having pain in her head and shoulders. This indisposition increased during the day, so that along early in the evening her husband telegraphed from Hoyt, Kan., which was near the place of his residence, to Doctor Dawson, a physician in North Topeka: "Come on the morning train and not fail. Answer." An error occurred in the transmission of this message, and Doctor Dawson was not informed thereby of the urgency of the case and did not respond on the morning train. Had he done so he would have arrived at eight o'clock. Another message in the morning caused him to go on the afternoon of the 5th, arriving there about five P. M., nine hours later than he would have done had the first message been properly transmitted and delivered. During the night of the 4th, and through the 5th, Mrs. Morris's ailment rapidly increased in severity, and Doctor Dawson upon his arrival found her suffering greatly from an acute attack of peritonitis. He administered some remedies which gave her relief, and left after a stay of two or three hours. He again visited her on the 7th. Thereafter, and up to the 27th, he prescribed upon reports as to her condition brought to him by her husband. On the 27th of December she was brought to a hospital in Topeka, where a surgical operation was performed by Doctor McClintock, with the assistance of other surgeons and her ovaries and Fallopian tubes were removed. This action was brought by the defendant in error to recover his expenditures for the services of surgeons, doctors, and nurses, and for his damages for the loss of time and services of his wife consequent upon the surgical operation. His theory was that the diseased condition of the ovaries and Fallopian tubes, which required the surgical operation, was caused by the acute peritonitis with which his wife was affected on the 4th of December and thereafter, which would have been cured had the message been properly transmitted and delivered, and thereby Doctor Dawson enabled to arrive nine hours earlier than he did.

It appeared in evidence that Mrs. Morris had suffered a severe attack of general peritonitis in 1892, following childbirth and it is the theory of the telegraph company that the acute attack of peritonitis commencing on the 4th of December was not the cause of the diseased condition of the ovarian tract but that it was the result of the antecedent diseased condition of that tract; that peritonitis is caused by the introduction into the peritoneal cavity of disease germs; that these germs may remain inactive, and therefore innoxious, for an unlimited length of time in the ovarian tract until aroused by the proper exciting conditions, and then set up an inflammation in the peritoneal cavity. The evidence of the company showed that when the ovaries and Fallopian tubes of Mrs. Morris were removed they were found greatly diseased, the one on the right side of the body being nearly obliterated; that about both of them there had been built up a living membranous tissue from a quarter to one-half an inch thick, the same being organized and having blood-vessels through it. It was undisputed that the condition in which these ovaries were found could not have been brought about within the short period of time elapsing between the commencement of the attack on the 4th and the time of the surgical operation some twenty days thereafter; that the diseased condition of the ovarian tract, which, as. the company claims, was the cause, and not the result, of the acute attack of peritonitis, had 'existed for months--probably years--prior to the last attack of peritonitis. The defendant in error had judgment in the court below, to reverse which this proceeding in error is prosecuted.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Questions to an Expert. In asking a question of an expert witness, it is necessary to base it upon an hypothesis of fact, either expressed in the question or founded in the evidence already before the jury, well recognized and easily grasped.

2. EVIDENCE--Facts Must be Stated Hypothetically. An expert cannot be called upon to give an opinion on facts in his mind and undisclosed, or on matters in part within his observation and in part derived from others, but such facts must be stated to him hypothetically and his conclusion therefrom obtained.

Rossington, Smith & Histed, and George H. Fearons, for plaintiff in error.

S. B. Isenhart, Crane & Woodburn, and Waters & Waters, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

Several grounds of error are alleged. We shall discuss but two. After having testified to the progress of the disease, so far as he had observed it, the following questions were asked of Doctor Dawson:

"I will ask you, doctor, if you had seen Mrs. Morris at the time that her disease became acute, if, in your opinion, you could have cured her and prevented the operation that afterward took place?"

"Doctor, if you had been there to see this patient in time, that is, in the early inception of peritonitis, when it commenced, and could have or would have prevented these different stages which she went through with, state whether that, in your opinion, would have worked a cure in her case. Would that have saved this operation, in your opinion?"

These questions were objected to specifically because they called for the expression of an opinion by an expert without basing such questions upon a hypothetical statement of facts. The question asked was the one the jury was called upon to determine, and was only permissible because asked of an expert; but it is well established that in the putting of such questions the jury must be fairly informed what the facts are upon which the question is based and from which the conclusion is drawn. It is not proper to permit the witness to array in his mind facts, and then declare from such array his conclusions therefrom, because he may introduce into this list some things which are not facts -- some things which would not be competent to be considered in arriving at his conclusion. The opposite party is entitled to know the things considered by the expert witness in arriving at such conclusion, in order that such party...