Birmingham Railway & Electric Co. v. Ellard , 135 Ala. 433 ( 1902 )

HARALSON, J.

1. The first assignment of error insisted on, is the 3rd. The plaintiff ivas examined in her own behalf. She stated on the cross that Dr. Finch had been coining to see her, and said: “He came to see me more than once, when I had the colic.” Defendant asked: “He never came but one time, and that was when you had the colic?” She replied: “You are trying to cross me, so I will tell-you something that is not so. If you will give me time — If I tell yon a story,” — Defendant said:- “Go ahead, you can have as much time as you want.” The court said: “Give her time to answer - it.” Defendant’s counsel replied to that remark of the court: “I have given her plenty of time.” The court replied: Sometimes you don’t,”to which defendant excepted. There was no error here. The court appears to have thought defendant’s counsel was hurrying the witness for her answers, and simply said: “Give her time to answer,” and stated to counsel, who said he had given her plenty of time, that “sometimes you don’t.” There was no possible harm to defendant in the remark of the court, and even if counsel,' as a matter of fact, had 'given her plenty of time to answer, the court did not think so, and we will not presume it error in the discretion it used, to require what it thought was. sufficient time for witness to answer. It was the duty of the court to see that an orderly examination was conducted, and that the witness ivas not unduly hastened, which, so far as appears, was all the court attempted or intended to do.

2. The witness, Dr. John Davis, examined for plaintiff, gave her condition as he found it on examination. He had been asked on the cross -as to her ability to walk, with a strained or sprained ankle, back or side, or anything of the sort. The hypothetical question propounded by defendant ivas designed.to support-its theory or version of the facts connected with plaintiff’s injury, and her conduct during the day of the injury.' To meet this, the plaintiff’s counsel, on the re-direct examination, inquired: “Suppose the lady did commence suffering ayithin a very short time after she sat down on the car, and Avhen she got to 21st street and Second avenue, she got off and Avas suffering then, and l'impied and hobbled along to 10th street, stopping frequently on the road to rest, — several times on the road to rest,,' — might not that have occurred and still she have been hurt? Couldn’t she still have received the injury she complains of now, and done that?.” The defendant, objected “that it is a conclusion from the facts stated [which Avas called for] that the jury should draAV and not the Avitness as an expert.” TLe court stated to plaintiff’s counsel: “You can ask his [the Avitness’] medical opinion,” and Avitness replied, “Yes, sir.” The object of defendant in the cross of the witness Avas to elicit from him the ansAver that if she had been injured as claimed, she could not afterAvards haA'e gotten off at 21st street in Birmingham and walked to 10th street in the manner it was claimed she did. There was no objection to the question of the plaintiff, that it hypothesized the facts incorrectly, but the only ground was that it Avas a conclusion, which the Avitness Avas not competent to give. He Avas a medical expert, and, asked in the connection it Avas, — that the defendant on the cross had elicited from him testimony tending to show that she could not have received the injury, if the hypothetical case put to him by the defendant Avas true, — the question and ansAver Avere not improper. The object in asking it was to meet a hypothetical theory of defense being insisted on by defendant.

The* succeeding questions propounded to the Avitness constituting the basis for the 6th and 7th assignments of error, Avere for the same reasons already stated, as to the foregoing question and ansAver, not improper to be asked and answered.

3. The 8th assignment of error is that the court allowed plaintiff’s counsel to recall and examine her, touching the condition of her health, before the injury. The defendant on the cross-examination of plaintiff, as appears from her answers, attempted to show that she had for a long time been laboring under serious similar ailments to those she now claimed she was suffering from. She stated that her physician, before that, at some time not specified, had given her medicine for the colic, and she did not remember that he treated her for pain in the side and back and for heart trouble, but that there was, at one time, a little knot in her breast, for which he gave her something. Her husband, A. J. El-lard, had been also interrogated as to her former health, and he stated that his wife complained of her side, fifteen or twenty years ago, and did not know that she complained of trouble with her heart; that she complained of her stomach at that time; that he, did not know that she complained of head, side and back aches, and did not know that she had a cake on her side, but reckoned she did have one several years ago, and did not know when she last had the, cake in her side, but did have one several years ago. Examined on her recall, plaintiff stated if she ('.ver had a lump in her side she did not know it; that “twenty-three years ago, a little place came right here on me. I don’t know what it was.” She did not specify the place on her person called “a little place.” She said it was not very hard, but was purple and soon wrent away. She was asked by her counsel: “Had you been having chills before that?” Defendant objected, on the ground that the examination was not in rebuttal, and staled that he never went into anything twenty-three years old. The court replied to counsel: “I understood you, Mr. --[to inquire], whether before this thing happened, — [these things were the matter with her]. Your inquiry continued at quite a length on the ¡¡subject of her physical condition and her side.” Counsel reulied, “I understood that, but not that long ago;” and said: “The question is, will the court allow it,” and the court replied to counsel: “You can take an exception on that.” The witness replied, she had no recollection of having a lump or cake, iu her side. Counsel for plaintiff then asked whether or not she had been having chills at that time, and she replied that she had been having chills before that. The defendant objected, that the question called for evidence wholly illegal, irrelevant and incompetent. In view of the effort hv defendant to show that plaintiff had been laboring under physical disabilities before her injury for a long and indefinite period of time, we are not impressed that the question was improper, as its tendency was to show that her ailments since the injury were not attributable to any disease she hud before that time.

4. The 9th assignment was that the court refused to allow the witness for defendant, H. C. Miller, who was on the car at the alleged time of the injury, to answer the question: “Did you see anything happen there that would have a tendency to hurt anybody?” It ivas objected that the question was leading, and called for a conclusion of the witness. It- was subject to the latter objection. The witness should not have been asked his opinion as to the tendency of things he saw, but for the facts, and it was for the jury, from these facts, to determine if he saw anything happen, having a tendency to injure anyone. The court said, in its ruling, that counsel might ask for anything and everything that happened, and to let- the jury say what the tendency was. He had stated fully all he saw as to the accident, and the defendant got, as appears, the full benefit of all he knew or saw.

5. There was no objection to allowing questions asked the defendant’s witness, Fannie Reese, constituting assignments of error 10, 11, 12 and 13. The answers had a tendency to show that after having been put under the mle by the court, the witness violated its instructions not to talk to anyone about the case. She was not excluded as a witness on this account; but the questions were allowed and were not improper to go, even, to the jury, as calling for evidence tending to show the witness’ interest and bias in the case. Their object, again, may have been to lay a predicate to move to exclude the witness altogether, and it was competent for the court to allow them for that purpose. If defendant did not desire the jury to hear them, he might have moved for the retirement of the jury during the examination.

0. At the time Mrs. Reese was being examined, plaintiff’s counsel on the cross asked her: “Didn’t- Mrs. Ellard sit up at your house at night, when your baby died? * * * I mean at the time you talked about her being weak and delicate? 1 mean during that time you say she was weakly and delicate, and when you lived near her, didn’t she go and sit up with you, at the time your baby died?” The objection to the question was for illegality and immateriality of the evidence called for. The court mled that it was allowable, solely for the purpose of showing she was not in bad health.

The witness, on direct examination by defendant, had testified to facts tending to show that before the accident plaintiff was a weak and delicate woman, and this, with the evident view, that her present condition was not attributable to her alleged injury. For the purpose for which it was allowed, the question and answer were proper.

7. The 15th, 16th and 17th assignments, are scarcely insisted on in argument. The insistence is: “We submit that each question was improper, and that the court erred in overruling defendant’s objections thereto.” This was no more than a substantial repetition of the assignments of error themselves.

8. Dr. Wilson, examined for defendant, was asked by plaintiff on the cross: “Well, is a patient any more responsible for a hysterical condition than for any other condition?” He had testified in chief, giving his opinion as to hysteria and its causes, and,stated that plaintiff had the appearance of a hysterical person; that such patients are honest in the belief that they have the trouble Jhey complain of; that a hysterical condition may come without any cause at all; that patients will sometimes have hysteria continuously, and become hysterical after an injury or shock, or any sudden or serious trouble; that such patients may have total inability to use the limbs in any way; that it was taught that people who have lawsuits pending, and who are claiming to have been injured by accidents and claiming money for them, imagine they were hurt, etc., etc. He was asked on the cross the question above stated. The question was competent on .the cross-examination, to test the knowledge of the expert as to hysteria, under which, according to the contention of defendant, plaintiff was laboring.

9. I)r. Wilson further stated that he did not say that persons Avho pretend, that, there is something the matter with them while their law-suits are pending, are necessarily hysterical. Plaintiff asked: “Are they hysterical?” Defendant objected to the question on the ground that it was immaterial, and as being a matter of common knowledge. The witness answered, “Not necessarily.” The objection was properly overruled on both grounds. It did not call for a matter of common knowledge, and the plaintiff was entitled to the opinion of the expert, touching matters he had been examilied about in chief by defendant.

10. Dr. Barrett had been examined in behalf of plaintiff, and some of the tendencies of his evidence were favorable to her, and the same is true, of Dr. John Davis. Dr. Wilson testified that he knew each of them. As to Dr. Barrett he was asked on the cross: “Is he a skilled physician? How does he stand?” The court overruled an objection to the question, for that it was immaterial and improper.

The reputation and standing of these physicians had in no way been questioned, except that Dr. Wilson, perhaps, had expressed opinions somewhat at variance with theirs. The rule seems to be settled with us that whether a witness who is a physician, in a case like this, has a reputation for skill or the want of it, is no part of the issue, unless the, capacity of the witness, in his profession, is impeached (DePhue v. State, 44 Ala. 32). Or, to state it otherwise, that after a witness, has been admitted to testify as an expert, the opinions of other experts in the same science, that the witness was qualified to draw correct conclusions in the science on which he was examined, cannot be given in evidence to the jury.—Tillis v. Kidd, 12 Ala. 648. The court say in the cast' last referred to, as to the admission of such evidence: “This Avas evidently invading the province of the jury, Avhose particular duty it Avas to determine on the Aveighi, the testimony of the Avitness Avas entitled to. Such testimony Avould have been properly adduced to the court, to establish the competency of the Avitness, but after he Avas admitted to testify, the jury were the exclusive judges of the credit he was entitled to.” Rogers on Ex. Testimony, §§ 17, 37. If evidence of other Avitne.sses.be allowed to sustain the reputation of the expert, it Avould seem necessarily to follow, that countin’ cAndence might be adduced by the party against whom the evidence Avas alloAved, and neAV side issues thereby injected into the case.

11. Ur. Finch, examined for defendant, testified, that he attended plaintiff in 1893-1894, and stated her condition and the complaints she made at that time; that she suffered with several troubles and he treated her for stomach troubles, and she complained of her head, back, hips, and side’, and at times of her heart, and often of a difficulty of breathing, and made these complaints, more or less, for about four years, — -from 1887 to 1893; that she had hysteria in those years he attended her; that he was present the day before, and examined her some, but not extensively; that Doctors Davis and Wilson were also present, and she made the' same complaints, except that she exaggerated them some; that yesterday morning she complained of her side, back and arm. Counsel for defendant asked Mm: “Well, where they or not the same complaints she made during the time you treated her four or five years ago?” The objection to the question, which was sustained, was that it called for a conclusion of the witness. Whether or not she made the same complaints the day before, that she made years before, when the doctor attended her, Avas a matter of fact, to which the Avitness, if lie kneAV it, like any other witness, Avas competent to testify, Avithout reference to his being an expert, and his opinion was not called for as the objection to tbe question stated. The purpose of the evidence was that the subjective symptoms, — those manifested from complaints, — did not sustain her claim in respect to the seriousness of her injuries. It should have been allowed.

12. II. L. Brown for defendant testified that he was the conductor on the car at the time of the alleged injury, and deposed to the facts of the stopping of the car and the getting on of the passengers, including the plaintiff. Fifth street ivas the place where plaintiff got on, and the gravamen of her complaint is that the car, after it was stopped, started too quickly and Avith a jerlc or lurch, Avhich caused her injuries. There is no dispute but that the car stopped, indeed, it is so averred in the complaint. She made, and could make, no complaint of the speed of the car as it approached that station, and the speed with which it did approach wm wholly immaterial to the issues. The question, therefore, by plaintiff on the cross, “Yes, as you approached Fifth street station, hoAv fast were you going?” which Avas allowed by the court against an objection of immateriality, irrelevancy and illegality, Avas improperly allowed.

13. This Avitness testified that he moved or started the car after it Avas stopped by releasing the brake and applying the current, one point; that it moved gradually and slowly, with no jerk at all in its moving; that he could not apply any less than one point and move the car, as one point was as little current as you can give. The Avitness was asked by plaintiff on the cross: “How do you usually start your cars off from the station?” The Avitness had stated how he started it, — gradually and slowly and with but one current on, which was as little as he could apply to move the car. It may be, that by asking the question, counsel’s design was to show by the Avitness that he AAras mistaken when he said he applied only one current to move the car, and by asking the question, the witness might discover his mistake, and say that usually he applied less than one point. But, Avliatcwer his object may have been, he had the right on the cross to ask about matters already staled by the witness, and to.call for a repetition of bis evidence on a given point. We discover no reversible error in this ruling* of tbe court. Wliat is here said disposes of the 30th assignment, in overruling an objection on the same ground to the question: “What do you usually do [in starting from a station,] ?” and to the other like questions made the basis of the 31st and 32d assignments.

14. Defendant examined one Dobson Reese, whose testimony was favorable to it. The plaintiff’s counsel asked on cross-examination: “Mr. Reese, you have served a term in the penitentiary, haven’t you?” He answered, “1 have not.” He was asked again: “Ever been convicted?” lie replied: “No, sir.” Defendant’s counsel addressed plaintiff’s counsel: “Of course you know that is not the way to prove it.” Defendant’s counsel afterwards put a witness on the stand and proposed to 'prove, by him that he had known Mr. Reese for about 25 years, and that his general character in the community in which he lived was good. Plaintiff’s counsel objected on the ground that the witness’ general character had not been attacked,'and the court sustained the, objection. The ruling was proper.

15. The ruling of the court in allowing the witness for plaintiff, Bourgeois, to be examined for an alleged violation of the instructions of the. court, after she had been put cinder the rule, was a matter within the discretion of the court, which we will not review.

1(>. There was no reversible error in the part of the general charge of the court excepted to. The court amended the charge to meet the objection raised by defendant to it. The counsel said, if you will put in the word “necessarily,” I will withdraw the objection. The court, stating that he did not believe it was necessary, added that he would put it in tq oblige counsel, and instructed the jury that they were not necessarily to be governed by the number of witnesses, but by the weight and preponderance of the evidence. Whether it was a proper charge as amended is not presented for review.

17. Charge No. 1 asked by defendant, and refused, when applied to the whole complaint was an improper one. The jury might have found for the plaintiff on less than is therein hypothesized.

For the errors indicated, the judgment must he reversed and the cause remanded.

Reversed and remanded.