Wylie v. City of Wausau , 48 Wis. 506 ( 1880 )

Obton, J.

On the trial of this cause, the following questions were propounded to the witness Ur. Searles, which were not allowed, and the appellant excepted:

“ "Would you have known of any falling off of Dr. Wylie’s practice, if that had been the case? ”

“ Is the field of practice there so large that you would not have known if there had been a falling off of Dr. Wylie’s practice in the last five or six years? ”

“ What would be a fair amount of patronage per diem for a physician, of the qualifications of an ordinary physician, of fair standing, since the spring of 1872, at Wausau, without any physical disability to attend calls? ”

“ Can you state what a fair division of the patronage as it existed, on his part, would amount to?”

These questions were clearly not proper as being professional or as addressed to an expert, because no foundation for them had been laid by first ascertaining the witness’s knowledge of the facts upon which his opinion as an expert could be based. 1 Greenl. Ev., § 440. In any other view they' would not elicit any specific .facts bearing upon the issue, or any opinion which would be strictly that of an expert. In Blair v. The Milwaukee & P. du C. Railroad Co., 20 Wis., 262, the question addressed to Persons, the copartner of Blair in trade, was as to the damages to the partnership business caused by his injury and consequent absence. This court held that the witness’s opinion upon the subject, although he might give a more accurate judgment than others, because in the same business, was merely conjecture, and did not furnish a safe guide for the verdict of the jury, and was not admissible as expert testimony. In that case it was held further that the testimony was inadmissible because it had a direct bearing upon the question of damages, and was calculated to substitute the opinion of the witness for the judgment of the jury upon the facts of the case.

These questions were very similar in character and effect to the questions, held by this court inadmissible, in the case of Oleson v. Tolford et al., 37 Wis., 327. “ State, if you know, from your own knowledge of the condition of'the road at the time, what would be the chances for a stage coach to tip over, being driven by an ordinarily prudent driver? ” “Was that stage overloaded, in your opinion?”

The statement in the charge of the court, if otherwise fair and impartial, of what “ the testimony tended to prove,” is the common and approved form of speaking of the evidence at all, in instructing the jury upon the law, and is certainly not a statement of what the testimony actually proves. The circuit court distinctly submitted to the jury all questions of fact in language which they could not misunderstand, and we thinlc the .general charge was a very full and fair exposition of the law of the case. It appears to us that the charge embraced substantially every principle of the special instructions asked by the learned counsel of the appellant, that the verdict is supported by the evidence, and that the damages are not excessive.

By the Gourt. — The judgment of the circuit court is affirmed, with costs.