Tullis v. Rankin

• Decision Date: 02 July 1896
• Court: North Dakota Supreme Court

68 N.W. 187

6 N.D. 44

AMOS E. TULLIS v. JAMES A. RANKIN

Supreme Court of North Dakota

July 2, 1896

Appeal from District Court, Stutsman County; Rose, J.

Action by Amos E. Tullis against James A. Rankin. Judgment for defendant. Plaintiff appeals.

Reversed.

Reversed, and a new trial ordered.

M. A Hildreth and J. A. Knauf, for appellant.

E. W Camp, for respondent.

OPINION

BARTHOLOMEW, J.

This was an action for damages for malpractice in the amputation of a leg. There is but one question in the case although presented in a variety of forms, and it is this: Is is legally competent, in order to show malpractice, for a surgical expert, with the results of a surgical operation performed nearly two years prior before him, either through his own personal examination and investigation of that result, or through an hypothetical question placing the results properly before him, to give an opinion as to the cause or causes that produced the results? The trial court held that it was not. We reach the opposite conclusion, while admitting that the question is close, and that authorities can be found that give support to the ruling of the trial court. The authorities are not uniform. Each case seems to have been ruled to some extent by its own attendant circumstances. Courts, as a rule, entertain an aversion to expert testimony, particularly medical and surgical expert testimony, and experience no doubt warrants the aversion, yet it is well understood that expert testimony is often indispensable; cases must be decided upon that class of testimony. Its weight or lack of weight may often be matter of embarrassment for a jury, but courts ought not to exclude it for that reason. There are cases where a given result might be produced by so many different causes, and of so nearly equal probability, that it might be very difficult to assign the true cause. Yet where it is a matter that must be determined from scientific investigation and information, and from that only, it is difficult to see why a witness who has shown himself possessed of the requisite scientific knowledge should not be allowed to state what, in his opinion, was the cause of the effect. Of course, the weight to be given to the opinion might be but little, but a party ought to be permitted to present it. Other cases may arise where, from a scientific standpoint, a certain effect could be produced only from one cause. In such a case no one would question but that the scientist might be asked what, in his opinion, was the cause of the effect; and yet the inherent nature of the testimony is not different in the two cases. It differs only in the weight to be given to it. This view of the law would seem to be somewhat opposed to the views expressed in Spear v. Hiles, 67 Wis. 361, 30 N.W. 511. But that case does not purport to announce any general rule. Its facts were exceptional. It was an action for malicious prosecution, brought by a woman who had been arrested and imprisoned. By the expert testimony the plaintiff sought to establish a fact to augment her damages. The court held that it was not a proper element of damage, but also held that the expert could not give his opinion that a certain condition was the result of a certain cause, because it was common knowledge that so many other causes might have produced the same result. Noonan v. State, 55 Wis. 258, 12 N.W. 379, is also, perhaps, an authority in respondent's favor. Hanselman v. Carstens, 60 Mich. 187, 27 N.W. 18, cited by respondent, is not in point, as the court was then discussing a different question; and Brant v. City of Lyons, 60 Iowa 172, 14 N.W. 227, also cited, is, we think, in appellant's favor. Rogers on Expert Testimony, at page 353, thus states the rule: "But an expert, speaking on a question of science, can be asked, in the presence of a given effect, of what...