Matthews v. Lamberton

Brooke, J. (after stating the facts). The first assignment argued by counsel for defendant is the fourth. The following question was asked: — 750 — “Q. Doctor, in the treatment which you were required to give to Mr. Matthews on the occasion when you treated him, was it necessary that you make any investigation as to whether or not the patient had a hernia?” This was objected to as incompetent, irrelevant, and immaterial. After argument the question was allowed, and was answered as follows: “A. I made such an examination.as far as I thought advisable or necessary; there were no indications that called for any further examination. I have had occasion to treat patients suffering with hernia, and have had occasion to examine them as the hernia was caused or developed or as it was forming. I have examined them in all stages; an-enlarged incomplete hernia might be forming and afterwards become a complete hernia.” It is asserted by counsel for defendant that this is reversible error under the authority of Maynard v. Vinton, 59 Mich. 154 (26 N. W. 401, 60 Am. Rep. 276). We are unable to agree with this contention, for the very good reason that the objectionable part of the question' was not answered. The physician did not testify whether or not it was necessary for him to make the investigation, but did testify simply as to what examination he made. Second. It is argued under the 5th, 6th, and 8th assignments that the court erred in permitting testimony of the witnesses who had observed the plaintiff in his attempts at doing work after the fight. The argument is made that: “If this testimony was proper, then one seeking to recover damages could go about among his friends and acquaintances and affect all sorts of complaints and injuries, and then call in these friends and acquaintances as witnesses to show the character of work that he was able to perform.” We are of opinion that this testimony was admis — 751 — sible. Foster v. Krause, 187 Mich. 630 (153 N. W. 1066). See, also, 13 Cyc. p. 204, where the rule is stated as follows: “Evidence of the conduct, general health and physical condition of the plaintiff both before and after the infliction of an injury, or a comparison of one’s health before and after such time, is admissible as tendingJx> prove the extent, nature and probable effects of the injury” — citing cases. Third. Error is assigned upon the following question addressed to plaintiff’s wife: “Q. During that time did he have any pain about the head and his— “A. He did.” . Objection being interposed, the court said: “She can state what she noticed.” After which the witness replied: “A. Why, when he was in bed, he often moaned and groaned and rolled and tossed from side to side.” In the light of the ruling of the court and the subsequent testimony of the witnesses, we are of opinion that there was no error. Fourth. Error is assigned upon the action of the court in permitting counsel for plaintiff upon redirect examination of plaintiff to take an answer to the following question: “Q. Now counsel asked you if you stood — if he stayed right there, and you replied that he did. Now I ask you if you understood that question, if — and just what Mr. Lamberton did as he raised his hand.” A colloquy followed, in the course of which the witness said that he did not understand the question put to him by defendant’s counsel. After further objection the court said: “Yes, but he says he didn’t understand the question; he has a right of course — it is for the jury, it is — 752 — all before them as to whether he did understand it or not. A man always may be called back to correct anything; if he misapprehends questions, it is for the jury to say whether he did misapprehend or not; it is all before them. You may save an exception. “A. He crowded right upon me.” We are unable to discover any reversible error in the foregoing. Fif th. Under this head the 2d, 3d, 10th, 11th, 12th, 13th, and 14th assignments are argued. They all relate to questions addressed to the expert witnesses Dr. Ullrey and Dr. Carr. Dr. Ullrey was the physician who treated plaintiff immediately after the affray and who had treated him for an incomplete rupture some 15 years prior to the injury complained of in this case. Dr. Carr, a physician making a specialty of eye, ear, nose, and throat, and who made an examination of the plaintiff just prior to the trial, gave testimony touching the condition in which he found him, particularly with reference to his hearing. As before recited, it was the contention of plaintiff that although he had suffered from a partial hernia some 15 years earlier, he had completely recovered from that ailment, and that the hernia for which he underwent a major operation after the affray was caused entirely by the injuries inflicted upon him at that time. On the part of defendant it was claimed, and this claim was supported by some testimony, that plaintiff was suffering from a hernia at the time of the affray. After stating the various claims of the parties upon this point, the court charged the jury as follows: “If you find that plaintiff was so suffering at the time of the affray from this hernia and had that hernia, plaintiff cannot recover for any alleged injury of rupture or hernia. If you find from the evidence that there had been a recovery as contended by plaintiff from this injury or threatened injury of hernia before the affray, then plaintiff is entitled to recover on — 753 — that item. However, it appears from the testimony that plaintiff in January of the present year underwent an operation for this rupture or hernia, and that such operation was successful. Therefore you are not permitted to consider the element of permanent damage or injury by reason of this hernia. And upon the question of damage on this item, no damage can be rendered for causing rupture to the plaintiff, unless you find that such rupture was the direct result of blows or violence inflicted by the defendant upon the body of the plaintiff.” The» first specific assignment under this head is based upon a hypothetical question propounded to Dr. Ullrey. Dr. Ullrey’s answer to this question indicated a knowledge of the facts acquired as attending physician, and was not based upon opinion, whereupon the court instructed the jury: “So the hypothetical question will be stricken out, gentlemen, and what the court said in relation to it to you, you will not consider that at all. Counsel may now proceed to examine the witness anew.” Thereafter the physician was examined as to his actual knowledge of plaintiff’s condition, based upon his personal observation. No objection appears to have been made by defendant’s counsel to the withdrawal of the hypothetical question. He cannot now complain. 1 Thompson on Trials (2d Ed.), § 722. Error is assigned upon the following question propounded to Dr. Ullrey: “Well, if his ear was filled with dirt, gravel, and blood, as you found upon your first examination, that would be natural — the most probable way of having germs introduced into the ear, would it not? “Mr. Hendryx: Wait a minute, now, we object to that question as leading, and as not based — as not a properly hypothetical question, and assumes facts that are not proven, and asks for that which is not within the range of expert testimony.” — 754 — The question being answered in the affirmative, Mr. Hendryx said: “Your honor, I move to strike that out, the question isn’t — and the answer to it — isn’t whether that would be a probable way, but it was the probable way, and for that reason it’s highly objectionable. “The Court: This is the physician. If this testimony was received upon a hypothetical basis, your objection would be good; but here it is a physician who testifies to seeing the condition, and administering the first treatment, and I will let it stand for what it may be worth to the jury in arriving at a determination.” A careful reading of the entire testimony given by this physician indicates that it was based entirely upon his personal observation and knowledge, and not upon hypothesis. The ruling was correct. It is next urged that error was committed in permitting the following question to be answered by Dr. Garr, the expert who had made an examination of the plaintiff, particularly with reference to his hearing: “State, doctor, from the condition which you found upon your examination, whether or not the plaintiff’s hearing is or is not destroyed in his right ear.” To which the physician replied: . “Why, I know that the hearing is destroyed in the right ear.” Counsel criticize this by saying: “How did he know it? He never told the jury why. Neither the question or his answer gives any reason. The reason, if any, was lodged in his own breast. How was defendant to meet testimony of this character? No facts were stated upon which the opinion was based, and he was powerless to contradict.” A very extended cross-examination of this physician was entered upon in the course of which it was brought out that the plaintiff’s condition of health as to his deafness might be due to causes other than the injury. We presume that after examination a com — 755 — petent physician may be able to determine whether a patient is or is not deaf. We can see no impropriety in the course of the examination followed herein. The next assignment of error is predicated upon the allowance of a hypothetical question asked Dr. Carr. The question, with various amendments, objections, and colloquy, covers some four pages of the record. After “stating the facts it proceeds: “Assuming all these facts to be true, state, doctor, whether in your opinion the injuries to the ear, the head and abdomen might have been the natural and approximate results of the fight. “A. It is my opinion that the present condition would be the natural results.” While the better practice requires (Mayo v. Wright, 63 Mich. 32 [29 N. W. 832]; Jones v. Village of Portland, 88 Mich. 613 [50 N. W. 731, 16 L. R. A. 437]) the reducing of a hypothetical question to writing, where the facts are confusing or complicated, we are unable to find reversible error in its allowance in this case. Immediately after the question was answered the court instructed the jury as follows: “Now, gentlemen, lest I forget it, and it would be harmless if I instruct you at this time. Hypothetical questions are permitted under the law to be asked in certain cases. But before you can consider a hypothetical question in any manner in any case, you must find as a matter of fact that the conditions as stated in the hypothetical question have been proven by a preponderance of the evidence, to wit: All of the things that enter into that question which are assumed. Before you can consider the reply or the answer of a witness to a hypothetical question, you must have found that all of the elements that enter into that question have been proved to your satisfaction by a preponderance of the evidence.” Objection is made to another hypothetical question asked this witness immediately following that last considered. The objection is made that: — 756 — “In the question here objected to counsel does not set forth all of the assumed facts relied upon. To supply this deficiency counsel assumes all the facts which were stated in a former hypothetical question.” In the light of the caution delivered by the court upon this point above quoted, we think there was no reversible error. The next two assignments discussed are of like character, and require no further discussion. With reference to all these assignments, it may be said generally that the testimony of Dr. Carr was merely cumulative in character. Every fact testified to by him was supported by other testimony sufficient if believed by the jury to warrant their verdict. Sixth. It is asserted that the court should have granted a new trial because of the alleged misconduct of plaintiff’s wife and daughter in the course of the trial. Touching this allegation, the court in denying a motion for a new trial said: “During .the progress of the trial the wife and daughter of plaintiff occupied a seat back of counsel a great portion of the time. They were witnesses in the case. The court did not observe any unseemly conduct on their part, neither did defendant’s counsel call the court’s attention or make any objection at the time. The court did notice that during the closing argument by plaintiff’s counsel when he referred to the fact that plaintiff would always be affected in his hearing that there were tears in the eyes of both wife and daughter, and they placed their handkerchiefs to their eyes, but there was no sobbing or crying aloud, or any unusual emotion noticeable to the court, and it is my opinion that it was not responsible in any manner for the verdict.” The question here raised is one which addresses itself particularly to the sound discretion of the trial judge. We have read the affidavits in support of the motion upon this point, and are not disposed to disagree with his conclusion. Seventh. While the verdict was substantial, and, — 757 — considering the situation of the parties, might perhaps be considered large, the learned circuit judge refused to disturb it on the ground that it was excessive. Upon this record we are of opinion that his disposition of this question should not be questioned. On the whole we are satisfied that throughout the rather extended trial and under a careful charge, the rights of the defendant were fully protected. A different result would not likely be reached on another trial. The judgment is affirmed. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.