Dunn v. Dunnaker

87 Mo. 597 | Mo. | 1885

Henry, C. J.

This is a suit against defendant for damages for alleged' malpractice, in the treatment by him, as a physician and surgeon, of plaintiff’s arm which had been injured by an accident. The answer was. a general denial. A trial resulted in a judgment in favor of defendant, from which this appeal • is prosecuted.

In order to prove the case alleged by him, plaintiff read as evidence the deposition of Hr. H. P. Bigger, and, on defendant’s objection, the court excluded a portion of the deposition, in which plaintiff attempted to show that the witness, Hr. Bigger, had made statements out of court contradictory of his testimony. The court did not commit error in excluding that testimony. A party introducing a witness, and thereby vouching his veracity, cannot impeach his testimony, either by general evidence showing his bad character for truth, or by evidence of statements made by him out .of court, contradictory of his testimony at the trial. 1 Gfreenleaf’s Evid., sec. 442. Proof of such contradictory statements could not be allowed as evidence of their truth, and could, theret fore, be offered or received for no other purpose than to ■destroy the credit of the witness. Authorities to the ■contrary may be found, but we are of the opinion that, unless the party is entrapped into offering as, a witness one who testifies contrary to what he, or others upon whom the party had a right to rely, assured him his testimony would be, the evidence of contradictory statements made by him is not admissible. 1 G-reenleaf’s Evid., sec. 444. No such element of surprise or imposition exists in this «ase. The testimony was contained in a deposition taken by plaintiff, and had been for months on file, and he'was under no obligation to use it as evidence. ' This is wholly unlike the question decided in Brown v. Wood, 19 Mo. 475, in which it was held that, although a witness called by a party testifies contrary to expectapectations, “ he is not precluded from proving the fact by another witness, although in so doing'he may show the first witness guilty of perjury.” Plaintiff’s evidence consisted of the testimony of one expert witness, Dr. Bigger, to the effect that the carelessness and un- ' skillfulness of defendant consisted in bandaging the plaintiff’s arm at the location of the injury so tight as to stop the circulation of the blood, thereby causing gangrene, which necessitated the amputation of the arm. The evidence for defendant was exclusively that of physicians, who testified that.the treatment of plaintiff’s arm by defendant was proper.

The following instruction asked by plaintiff was refused:

“You are hereby instructed that in determining the issue in this case you are not bound and concluded by the testimony and opinions of the expert witnesses, but you are permitted to apply your own judgment, knowledge, and ideas, to all the evidence in the case, and the facts, as you may believe1 them, and thus determine-upon a verdict.”1

I am somewhat at a loss to know just what construction to place upon that instruction, in view of the fact, as appears from this record, that the only testimony offered, on either side, was that of experts. I do not think-that-the, jury, could have comprehended the meaning of that instruction, and am of the • opinion that it tended to mislead them to the conclusion that they could reject all the testimony-adduced, and find a verdict on their own knowledge of the facts, as they might believe them, no matter how they came to the knowledge of the facts. The ambiguity of the instruction was of itself a sufficient ground for its refusal. Instructions are intended as guides to the-jury, and should be clear declarations of the law applicable to the facts; and if open to two or more constructions, one of which is at variance with the law, they should be refused. No complaint is made of the instructions given by the court. The judgment is affirmed.

All concur.