McKormick v. City of West Bay City

Montgomery, J. Plaintiff recovered a judgment of $2,000 on account of injuries sustained by a fall through a hole in a sidewalk. Defendant brings error, and has assigned error upon a large number of rulings occurring on the trial, — in the admission of testimony, and on refusals of requests to charge preferred by defendant. 1. We think the contention that the proofs do not correspond to the allegations contained in the declaration as to the manner of the injury cannot be sustained. Nor do we think that there is force in the contention — 267 — that, under the plea of the general issue, the allegation of due care and caution on the 'part of the plaintiff, as to her acts in attempting to extricate herself, was insufficient. The declaration was not demurred to, and relates to a single transaction, — the falling into the hole in question, and the attempt-of the plaintiff to extricate herself, — and alleges that this occurred, notwithstanding the fact that the said plaintiff then and there-exercised all due care and caution, and was in no way guilty of negligence. We think this allegation of diligence on her part must have been understood as relating to the entire transaction. 2. Criticism was made of the opening statement of counsel, in which it was stated that the plaintiff was left a widow 17 years ago, with six children on her hands; that most of them were dependent upon her, and that she succeeded in keeping these children in school; that plaintiff was engaged in the business of keeping a boarding house, and did all the cooking and manual labor about the house; and that by reason of the injury she was incapacitated from carrying on the business, and unable to perform household work, or do anything of that nature. It is said that, as the plaintiff had not counted on the loss of profits of running a boarding house, this must have prejudiced the jury against the defendant. The reference to the family of the plaintiff was unnecessary and improper, but the testimony of the» plaintiff as to what her business had been, and what her ability to do work had been, was competent. Plaintiff’s counsel expressly stated that it was offered for the purpose of showing that the plaintiff was physically able to do work for a large number of men, and as describing the kind of person she was, and what she could do. The court permitted the testimony for this purpose, but distinctly stated that nothing could be recovered for the loss of that business under the declaration. We think this testimony was admissible for this purpose. — 268 — 3. The declaration alleged that prior to the accident the plaintiff was healthy, active, and able-bodied; that by reason of the injuries she was, and still is, subjected to great' pain and suffering, and has been totally incapacitated from doing any work, or exercising in any manner; and that said plaintiff has become permanently disabled, and is not, and will not again be, able to work or exercise, and will always be crippled, and dependent upon others for her support and maintenance. We think these allegations sufficient to admit of proof of her inability to perform ordinary work, and of proof of what she could have earned by ordinary labor. Kinney v. Folkerts, 78 Mich. 687. The testimony as' to the existence of pain in the head, we think, was sufficiently within the averments of the declaration. Montgomery v. Railway Co., 103 Mich. 46. 4. The defendant called as a witness one Reynolds, who was an alderman of the city, and a member of the committee on streets, and he testified that on the day of the accident, on returning home to his dinner, he passed the place where the accident afterwards occurred in the evening; that he discovered that there was a plank out of the walk, and laid in the ditch; that he replaced the plank, and notified the street commissioner that evening; and that the defect was repaired the next morning. The defendant asked the court to instruct the jury as follows: “There was no duty imposed on the witness Reynolds to repair the walk when he discovered it, on the 14th, and the plaintiff cannot recover on his failure to do so.” The court read this request to the jury, and added: ‘ ‘ There was no actual duty on the part of Reynolds to repair that walk, but there was a duty on him to give notice to the proper city authorities, whose duty it was to repair it with reasonable promptness.” And in his general charge the court said: “I charge you that notice to this member of the committee was notice to the city, and from that time after269 wards — from the time he knew it — the city was liable, as having actual notice of the defective condition of this walk or plank; and it was bound to repair it within a reasonable time, * * * considering the circumstances and the place and the danger.” It is contended that, as matter of law, it should be said that there was no unreasonable delay in the repair of this walk after notice to the city. We are of the opinion that there was no evidence of unreasonable neglect after the discovery of this condition of the walk by Mr. Reynolds, in view of the measures which he took at the time. His testimony is that he placed the plank, which was intact, in its former position, without nailing, and went about his usual business during the afternoon, and at the first opportunity, when he had leisure, notified the street commissioner of the defect. Hnless we are to hold that he should have abandoned his work, and sought out the street commissioner during the afternoon, he availed himself of the very first opportunity to notify him. We think it would be unreasonable, in view of the condition in which he left the walk, — the planks being all intact,- — to require that he should abandon his usual employment for the purpose of seeking the commissioner, to notify him. We do not think this question should have been submitted to the jury. We do not lose sight of the fact that there is a sharp conflict in the testimony as to whether the walk was in the condition stated by the witness Reynolds, but the charge upon this point was based upon his testimony. On the other hand, the plaintiff’s witnesses claimed that for some months prior to the accident a much more serious defect in the walk had existed at the place where the injury occurred, and this question was fairly submitted to the jury. But we are not able to say whether the jury acted upon the showing made by the plaintiff, or, on the other hand, was controlled by the instruction relative to the notice to Mr. Reynolds. 5. One other ruling is deserving of notice. The plain — 270 — tiff called as a witness a Dr. Stevenson, who testified that two days before the trial he had examined the plaintiff in company with one Dr. Mactavish, and he further testified : “We found that she could stand but poorly; in fact, that ■ she could not take a step without leaning upon something •solid.” Defendant’s counsel then objected to this testimony, ■stating his objection clearly, as follows: “Where a patient is examined by a physician with a view to giving testimony in a case, her conduct and her acts and her expressions and exclamations are incompetent. * * * When she calls in a physician with a view of making him a witness, whatever she does or says for the purpose of impressing the witness or the physician with her condition, if it is not something he deduces from her natural condition, it is incompetent, as manufactured testimony.” The court said, “I won’t say it is incompetent, but it is to be very closely scrutinized.” An exception was taken to this ruling, and the witness then proceeded: “We asked her to walk, and she apparently could not walk without aid.” This was objected to, the objection overruled, and an exception taken. The witness further testified to exclamations of pain by the plaintiff while undergoing examination. So far as expressions or acts of the plaintiff such as could be voluntarily made or simulated were testified to, the testimony was incompetent. We do not mean to hold that a physician cannot in any case testify to the physical conditions which he finds, whether in the •course of treatment., or on an examination made with the express purpose-of giving testimony; nor are we prepared to say that it may not be shown, in some instances, that there may be such a thing as an involuntary or mere physical cringing or shrinking from touch, such as the witness .testified occurred in this -ease, on pressure along the — 271 — course of plaintiff’s spine. But in such case the proof that the flinching is involuntary should be clear, and naturally such exclamations or such acts are subject to be carefully scrutinized, and are open to suspicion. But in no case is it competent to call physicians, any more than laymen, to testify that a party indulged in exclamations not involuntary, or that, from mere appearances, she was unable to go through with certain physical motions. The general rule is well recognized that exclamations of pain, or statements of present suffering, made by a sick person ■while undergoing such pain and suffering, are admissible, on the ground that they are the ordinary accompaniments and expressions of suffering. Such exclamations are regarded as acts, rather than declarations, and admitted from necessity. Lacas v. Railway Co., 92 Mich. 416; Will v. Village of Mendon, 108 Mich. 251, and cases cited. But this rule has been strictly limited, and it has been uniformly held that statements relating to past suffering, or of the causes of suffering, are not admissible; and it is just as firmly established that physicians or others, called to examine or confer with the injured party with reference to the trial of a pending case, are not permitted to testify to the exclamations made at the time, as far as they are voluntary exclamations. See Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 544 (31 Am. Rep. 321); Jones v. Village of Portland, 88 Mich. 598; Laughlin v. Railway Co., 80 Mich. 154. It is suggested that Jones v. Village of Portland rested upon a distinction between cases where the injury was direct, and cases of negligence, and that in this respect it has been overruled by Will v. Village of Mendon, supra. There is language in the opinion in Jones v. Village of Portland which is possibly susceptible of that construction, but we can hardly conceive that the decision rested upon sucli a' distinction. On the contrary,- we think it is apparent that it did not, as the court bases its ruling upon the case of Grand Rapids, etc., R. Co. v. Huntley, supra, which was a case of negligence, and — 272 — it is impossible to conceive bow the question of the manner in which the injuries were received could determine the character of the proof requisite to show the extent of the injuries. We are constrained to hold that there was error in the admission of this testimony. The other questions are not of sufficient importance to require extended discussion. For the errors pointed out, the judgment will be reversed, with costs, and a new trial ordered. The other Justices concurred.