Moberg v. Scott

WHITING, J. Action to recover actual and exemplar}' damages occasioned by plaintiff’s loss of conjugal consortium during a period of illness - preceding the death of plaintiff’s husband, and for damages resulting from his death, which sickness and death were alleged to have been caused by defendant’s unlawfully, willfully, maliciously, and knowingly furnishing the deceased with commodities of which opium was an ingredient. T'he complaint was upheld in Moberg v. Scott, 38 S. D. 423, 161 N. W. 998, R. R. A. 1917D, 732. Our holding in the above case is supported by the holding in Tidd v. Skinner, decided in 1919, and reported in 225 N. Y. 422, 122 N. E. 247, 3 A. L. R. 1145. ’See, also, notes 3 A. L. R. 1152. We refer to our former opinion for a full statement of the nature of this action. The answer was, in effect, a general denial. Verdict and judgment being for plaintiff, defendant appealed from such judgment and from an order denying a hew trial. [1] Appellant questioned the sufficiency of the evidence both by motions to direct verdict and, after verdict, by specifica — 376 — tions of particulars, wherein it is claimed that the evidence was insufficient to support such verdict. We deem it unnecessaiy to review the evidence. It was largely circumstantial in its nature, but, while there was much conflict therein, there was _ample from which the jury was warranted in finding that plaintiff’s husband,- for the last year or more of his life, was in a physical and mental condition unfitting him to give to his wife that aid, support, society, and companionship to which she was entitled, and which she had theretofore enjoyed; that such condition and the death which followed were caused by the husband’s use of a drug containing opium, and that such drug was wrongfully, unlawfully, and knowingly furnished the husband by defendant. [2] Appellant assigns error in the admission of answers to certain questions asked respondent and certain of her -witnesses on direct examination, and in the refusal of the court to strike out the answers thereto; appellant contends that there was a lack of proper foundation for such evidence, and that it consisted largely of opinions and conclusions. As illustrative of the questions asked is the following, which was asked respondent after witness had testified to- the fact of her marriage to deceased in 1905 and their living together thereafter: What was the condition of Mr. Moberg’s health up to about 1912?” Respondent contends that this and similar questions “called for scientific knowledge in research, which the witness, did not possess, and she was not qualified to answer the questions propounded. * * None of these witnesses were assuming to testify as experts. This was all the evidence of lay witnesses testifying as to their observations touching the health, general demeanor, etc., of deceased during the time of his alleged illness and prior thereto. That such evidence is competent is too' well settled to heed any citation of authority in support of its reception; but see Jones on Evidence, § 366 and cases cited thereto. [3, 4] Appellant contends that the court erred in allowing a physician, called by respondent, to give “his conclusions and opinions upon ultimate facts as to what produced the illness and death of the respondent’s husband”; furthermore, he contends that there were no facts in evidence upon which an expert — 377 — opinion could be based, and that the witness had not shown himself qualified to testify as an expert. With these last, contentions we cannot agree. There were sufficient facts testified to by this very witness — matters claimed to liáve been observed by him — upon which to base his conclusions and opinions; moreover, there had been ample evidence to establish his qualification as an expert. One question asked was: “In your treatment, continuing up to the time of his death, I wish you would state to the jury what in your judgment, what disease or malady he was suffering from.” Appellant contends that, by receiving, in answer, this witness’ opinion that deceased “was suffering from the effects- of opium poisoning,” the court took from the jury the determination of one of the ultimate facts- which should have been passed upon by such jury. Appellant cites State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D 191. Appellant would have presented for óur determination an important question of practice if it had previously been presented to the trial court by a proper objection. The objection- upon- which appellant attempts to predicate this particular claim of error was: . “Objected to as incompetent, irrelevant, and immaterial, and no foundation laid, as the witness at this time has not shown himself qualified to testify as an expert, and assuming a fact in evidence .which has not been proven.” It will be seen that no part of the above objection called the attention of the trial court to- the point now urged. The: ground of objection now urged by appellant is, in effect, that such answer sought was incompetent, but it is a settled rule of practice in this state that an objection that evidence sought is “incompetent,” without specifying wherein the incompetency -lies, presents nothing for a trial court’s consideration. State v. Devers, 32 S. D. 473, 143 N. W. 364. The only exception to such rule is where it clearly appears that the objection could not have been obviated had the same been specifically pointed out. McCabe v. Desnoyers, 20 S. D. 581, 108 N. W. 341. A slight change in the wording of the question would have obviated +he specific objection now urged, 11 R. C. L. 585-585.. We do not want to be understood as intimating that the question and — 378 — answer were properl}' subject to the specific objection now urged. [5] Appellant contends the court erred in allowing proof that appellant had no license as required by local ordinance, authorizing him to sell opium or drugs containing opium-. We think such evidence competent, both because it negatives any right to sell even on a doctor’s prescription and because it has a direct bearing- upon the good faith of appellant, and therefore on the right of respondent to recover exemplary damages. [6] Appellant contends that the court erred in receiving in evidence a large number of checks drawn by deceased in appellant’s favor, and which appellant admitted were cashed by him, at his store. These exhibits were, to our mind, practically immaterial. Respondent urges that they were offered to establish the fact, then not established, but afterward clearly appearing, that deceased often vijsited appellant’s drug store. But even though such exhibits were immaterial- and should have been excluded, we fail to see wherein their receipt could in the slightest have prejudiced appellant. [7] Respondent asked for $10,000 actual and $5,000 exemplary damages. Under the court’s instructions the jury, if it believed the evidence warranted same, could have found to. the full amount of $15,000, and it did return a verdict of $12,500. Appellant contends that the court erred in advising the jury that it could find damages in excess of $10,000; (a) because there was -no proof that appellant wa,s guilty of fraud, oppression or malice toward respondent — an essential to a verdict for exemplary damages; (b) because chapter 301, Laws 1919, limits the recovery to $10,000. We must presume that the jury found all the facts in favor of respondent. If so, it must have found that appellant had intentionally- and wrongful. sold respondent’s husband opium, knowing the character of the drug-, and knowing that deceased was using- same and being injuriously affected thereby. To so find was to find malice. 17 C. J. 984; Baxter v. Campbell, 17 S. D. 475, 97 N. W. 386. TYppellant suggested no reason' whatsoever why damages in excess of $10,000 could not be recovered, if malice was proven and therefore exemplary damages recoverable, except the pro — 379 — visions of chapter 301, Laws 1919, now §§' 2929-2931, Rev. Code 1919. Actions under such sections are for “pecuniary injury” only, and can only be brought where “the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued.” It does not appear that the facts of this case were such as would have given deceased -a right of action if he had lived. [8] Appellant testified in his own behalf, and upon cross-examination was asked as to whether he had not pleaded guilty to some six different criminal charges, including selling liquor without license, selling liquor to- a minor, selling liquor to be drank as a beverage, and selling poison without a label. He was required to answer these questions, and admitted that he did plead guilty to such charges. He contends- that it was error to ask such questions and iequire him to answer same; that the sole purpose was to prejudice the minds of the jury through the presentation of matter entirely .foreign to any question at issue. Respondent contends that she had a right to this evidence, “as bearing upon his veracity” — in other words, she contends that this was proper impeaching testimony. Appellant meets this contention with the claim that, even if evidence of conviction of crimes is competent to impeach a witness, the only proper evidence is the record of conviction. This seems at one time to have been the accepted rule, but the trend of decisions has, for many years, been, avuiy from such a holding, and to-da}' the great weight of authorit) sustains the right to require a witness, upon cross-examination, to answer as to whether he had ever been convicted of criminal offenses, and as to the particular crime or crimes of which convicted. Wigmore on Evidence, §1270; Elliott on Evidence, §982; Clemens v. Conrad, 19 Mich. 170; Real v. People, 42 N. Y. 270. Perhaps the best exposition of the reasons supporting this rule 'is to be found in the opinion in State v. Knowles, 98 Me. 429, 57 Atl. 588, which opinion is highly commended’ by Wigmore in section 1270 of the supplement to his work on Evidence. We quote the following therefrom: “In a technical sense the record may be the best evidence, — 380 — and the rule of primariness may require its production. This general rule, however, is of no great value, unless in its application to (the subject under consideration it is necessary for the interests of justice to avoid error, exclude falsehood, and promote the truth. It can hardly be claimed that a record of conviction is any more convincing to the mind, or less liable to error, than is the witness’ own admission of the' fact under oath. ITe may well be presumed to know what the truth is. There is very little possibility of his being mistaken as to the fact of the conviction, and none as to the identity of the party convicted. He has every inducement of self-interest to protect liis good name and reputation, and it is inconceivable that he will falsely, accuse himself. * * * To hold that we cannot receive as evidence the witness’ own admission of a fact which he has every inducement of self-interest to deny, an admission which can be wrung from him by the all-compelling power of truth alone is to exalt the shadow above the substance; to return to the reasoning .and results of* the earlier and darker period of the law.’s development, rather than to those which have obtaiined and prevailed in modern and more enlightened-times.” [9] This rule, as to cross-examination of witnesses for purposes of impeachment, applies to the examination of a party who takes the stand in his own behalf as well as to other witnesses. See above authorities; Jones on Evidence, Civil Cases, § 836; State v. Kent, 5 N. D. 516, 541, 67 N. W. 1052, 33 L. R. A. 518. But appellant most strenuously urges his contention that this cross-examination should not have been allowed beca'use it tended to prejudice the jury, “andl -led them’ to believe that the appellant was an habitual criminal, totally undeserving of any consideration whatever. * * *” Analyzed, this contention amounts to this: Cross-examination for impeachment purposes may become improper if too strong a case of impeachment is made out. That it may tend to prejudice -the jury is no ground for denying the right to -cross-examine a witness for impeachment purposes. It might as well.be urged that evidence of collateral matters, otherwise perfectly competent, ■ relevant and. material, — 381 — should not be received if perchance such matters are of a nature that, if proven, they would tend to prejudice a jury. State v. Kent,-supra. Of course the tidal court should see to it-that no question, the answers to which would tend to- criminate, disgrace or degrade a witness, are allowed, unless the- answers sought would also tend to impeach the veracity of such witness. The ruling upon the admission of answers to such' questions must of necessity be left to the sound discretion of the trial court; and, unless there has been a clear abuse of such discretion, the rulings of the trial court should be sustained. Jones on Evidence, Civil Cases/ § 834. The dates of the crimes to’which ■the cross-examination was directed were .not so long past that the court or the jury could fairly presume that, through mere lapse of time, the appellant had become a man of a different type than the commission of such, offenses might lead them -to believe he was at the time of their commission. Moreover, ■ we are convinced that a jury might fairly conclude that the testimony of one who had 'been guilty of the several offenses admitted by appellant was not entitled to the same credit as would be that of a person who had at all times been a law-abiding citizen. There certainly was no such clear abuse of the discretion vested in the trial court as would warrant this court to grant .a new trial herein. . . [10] Appellant’s brief is permeated with aspersive matter not rising to the' dignity of argument, but only tending to injure the writers thereof. Thus counsel repeatedly charge respondent’s exjpert witness of being a party to a “frame-up” designed to mulct appellant in heavy damages. There is not the slightest basis in the record for any such claim. Officers of the court— and attorneys are such officers — should . not stoop to such chicanery. The judgment and order appealed from are affirmed. McCOY, J., not sitting.