Hildebrand v. United Artisans, 91 P. 542

91 P. 542 | Or. | 1907

Opinion by

Mr. Commissioner King.

The first error assigned and relied upon is based upon the action of the court in sustaining an objection to defendant’s offer to introduce in evidence, and have marked as its exhibit, the proof of death, as a part of the cross-examination of plaintiff’s witness C. L. McKenna. This witness testified on direct -examination that on April 12th, and at all times since, including the date of trial, he was and is the supreme secretary of' defendant, and identified a letter to John T. Long, dated April 16, 1904, written by him as secretary of the Supreme Assembly of United Artisans. The letter was received in evidence, without objection, the material portion of which reads:

“Your letter of April 14th is at hand, and in reply will say we have received the proof papers in the case of W. C. Hildebrand, Jr., deceased on January 5, 1904.”

On cross-examination the witness was questioned as to the proof papers there referred to, in the identification of which he answered that he had reference to the proof of death of Mr. Hildebrand, stating he thought it was sent by plaintiff. Wit-’ ness was then handed a document and asked to state its nature, to which he replied-that it was’the-proof mentioned in the letter, and the only proof received, which instrument was then offered in evidence. Objection was made and sustained to its introduction as incompetent and not proper cross-examination, as well as for the special reason that a part of the instrument offered purported to be.the proceedings of the coroner’s inquest, by which plaintiff was not bound. Defendant’s counsel insist that, since the “proof papers” were mentioned in the letter, he was entitled not only to question the witness thereon, but to introduce them in evidence, notwithstanding the proof tendered included the proceedings had at the coroner’s inquest. The record discloses that the witness was interrogated on. cross-examination as to the matters referred to in the letter, and that no objection was made until the “proof papers” were offered in evidence.

1. The purpose of the cross-examination, as well as the attempted introduction of the “proof” in evidence, appears to have been intended for the purpose of sustaining the claim, of suicide affirmatively pleaded by the defense. Where this defense is interposed to a policy of insurance, the presumption being that death resulted from natural causes, the onus is upon the defendant to sustain the allegations to that effect: Cox v. Royal Tribe, 42 Or. 365 (71 Pac. 73: 60 L. R. A. 620: 95 Am. St. Rep. 752).

2. Wihere the by-laws of a mutual benefit society provide that upon the death of a member the officers of the local society to which he belonged, as in this ease, should furnish full proof of death upon printed blanks prepared for that purpose, and give their opinion as to the validity of the beneficiary’s claim, such local officers must be considered the agents of the general society: Patterson v. United Artisans, 43 Or. 333 (72 Pac. 1095); Whigham v. Independent Foresters, 44 Or. 543 (75 Pac. 1067).

3. In such cases their statements and admissions made against the interests of the general organization áre competent evidence in an action on the benefit certificate: Patterson v. United Artisans, 43 Or. 333 (72 Pac. 1095).

4. The proof in this instance was 'sent the defendant by Mrs. Edith Plank, as the local secretary of the order; at least she so testified, and her statements to that effect are not contradicted by any positive testimony, and if they had been contra-dieted it would have been a question for the jury. Evidence was given tending to show that when the proof was made J. T. Long, although assisting the local secretary, was not acting as attorney for the claimant, but as any other member of the order might have done in the way of assisting the secretary in the preparation of the proof she was required under the rules to furnish, notwithstanding he afterwards became one of plaintiff’s counsel in this action, and signed his name as such. It is only upon the assumption that plaintiff, in place of the local secretarjr, by reason of Long’s assistance, furnished the proof, that the proceedings of the coroner’s inquest could be deemed admissible. There being some evidence showing that he was not acting as such attorney, and that the proof was furnished by Mrs. Plank, as secretary of the local order, it then became a question for the jury to determine whether the proof was furnished by plaintiff or by defendant’s local agent.

5. The proof offered on this point by defendant was evidently intended in support of its claim of suicide, as alleged, and only admissible for that purpose. The question asked McKenna by plaintiffs counsel was for the purpose of identifying the letter offered and received in evidence; but, since he was also questioned in his direct examination as to what proof papers the letter referred to, the defense was entitled, as a part of its cross-examination, to have the proof papers identified by the witness and to mark them for subsequent reference, but it is very doubtful whether it was entitled, on cross-examination, to have them received in evidence. It was a part of its defense. Testimony of this class is sometimes admitted by the court in the exercise of its discretion, in' which event its admission has been held not to be reversible error: Wills v. Russell, 100 U. S. 621 (25 L. Ed. 607). But it seems to be the well-recognized rule that, when a witness is called by one party, the opposing litigant only has a right to cross-examine upon the facts to which he testified in chief. In his direct^ examination McKenna did not pretend to identify nor to give the contents of the proof papers, but stated merely what ■the letter had reference to in that respect. If,' on cross-examination, defendant can be permitted to go to the extent, not only of identifying the instrument, but of introducing it in evidence,' he would thereby procure the advantage, under the pretense of cross-examination, of making him his witness in chief, and, at the same time, of depriving plaintiff of any cross-examination of the witness on points thereby elicited. It is manifest that such practice should not be encouraged: Stafford v. Fargo. 35 Ill. 481.

6. Even though defendant’s position on this point were tenable, any error that may have been committed in this respect was rendered harmless,- as defendant’s rights could not have been prejudiced thereby, in that all of the proof papers were subsequently admitted as a part of the defense, in the admission pof which the court evidently assumed that it was a matter for the jury to determine whether the proof was furnished by the plaintiff or by defendant’s local agent, and, if found as a fact to have been furnished, by plaintiff, were entitled to consider the -proof, with inquest attached, as an admission against plaintiff’s interest, tending to support defendant’s contention, and instructed the jury ■ accordingly. We think, therefore, that defendant cannot avail itself of the alleged error of the court in refusing on cross-examination to admit the “proof papers” in evidence: Olive v. Olive, 95 N. C. 485; City of Chicago v. Peck, 196 Ill. 260 (63 N. E. 711); Seymore v. Malcolm McD. L. Co. 58 Fed. 957 (7 C. C. A. 593); Wills v. Russell, 100 U. S. 621 (25 L. Ed. 607).

7: It is next urged that the court should have sustained the objection to the question asked Mrs. Plank, “Was-he [Long] assisting you as attorney or just as a member of the order at your request?” as to’the status of which -it-is urged that the witness was not competent to express an opinion. No objection was made to the question on the ground that it was calling for the opinion of the witness; but, regardless of that feature, we fail to see what bearing the answer could have in the light of Mrs. Plank’s' testimony, as it is shown that she, as secretary of the order, sent the proof' to the supreme secretary. It cannot be material, therefore, what assistance she may have procured, whether legal services or otherwise, as she was acting as defendant’s agent, and the papers offered in evidence, constituting the proof referred to, were received by the supreme secretary from her as such agent.

;8. Again, the witness, while acting as such secretary, and having procured Long’s assistance in filling out the blanks and in taking acknowledgments as a notary, was in position to know the capacity in which she procured his aid, whether as a brother member of the order or as an attorney, and fully competent to testify in reference thereto. Nor can there be any question as to her right to state the position in which Long assumed to act when he tendered and furnished his assistance: Raub v. Otterback, 89 Va. 645 (16 S. E. 933); Bender v. McDowell, 46 La. Ann. 393 (15 South. 21).

9. It is next insisted that the court erred in permitting the three physicians • called as witnesses to give certain expert testimony relative to the effect of the gunshot wound in the temple of the deceased, a sample of the questions asked being:

“Q. Now you may state, doctor, from your experience as a physician, and from observing people who were wounded in that way, what in your opinion would be the effect upon the muscles as to their relaxing, or becoming immediately stiffened —I think your medical term is rigor mortis, setting in—if a person dies almost immediately from the effects of a pistol ball entering the head through the right temple?”

Objections were made to this class of questions as being incompetent, irrelevant and immaterial, and for the reason that the physicians testifying had not been shown qualified to answer; but no objection was predicated upon the grounds that the proper foundation had not been laid, nor 'proper hypothesis given therefor. There can be no doubt as to the materiality, relevancy and competency of the inquiries, as the answers sought and elicited thereby tend to rebut the proof of suicide offered by the defense.

10. An objection to the relevancy, competency and materiality of the subject-matter of the question waives any defects in its form: Ene. Ev. vol. 9, pp. 100-106.

11. It is a well-settled rule that before a witness can be permitted to give expert testimony it must not be on a subject, of common experience: State v. Anderson, 10 Or. 448. The proper mode of examination is by a hypothetically stated case which should embody substantially all the facts relating to the subject; and a'physician testifying as such expert must first be shown qualified to do so either by actual experience in cases similar to the one put to him or by such careful and deliberate study as enables him to form a definite opinion of his own in reference to the matter under consideration. Also, where he is called upon to testify from his own knowledge, it must appear that he has trustworthy information and knowledge of facts involved and upon which his opinion is to be founded:Thompson, Trials, § 588; 8 Ency. Pl. & Pr. 745; State v. Anderson, 10 Or. 448; State v. Simonis, 39 Or. 111 (65 Pac. 595); Soquest v. State, 72 Wis. 659 (40 N. W. 391). Each of the physicians called as witnesses in this ease not only testified that he is a licensed physician and practitioner of long standing, but to facts sufficient to indicate a reasonable amount of experience in and observation of the particular kind of gunshot wounds concerning which he was examined, from which it follows that the objection made as to the qualification of the witness to give testimony elicited is untenable.

12. It is extremely doubtful, however, as to whether the questions in the form asked laid sufficient foundation or stated a proper hypothesis, but no objections appear on that account. The objections made go only to the relevancy, competency and materiality of the testimony sought by the questions and to the qualification of the witnesses to testify on the points upon which they were interrogated. It is well settled that, where an objection upon one ground does not go to the other not stated, it is a waiver of all objections not specified: Ene. Ev. vol. 9, pp. 100-106. Prom which it follows that an objection having as its basis the assertion that the witness has not shown himself qualified to testify on a subject waives any objection to the sufficiency of the form of the question, or as to the proper l^pothesis not being given. One goes to the knowledge of the witness, and the other to the form of the question asked. An objection to a hypothetical question on specified grounds raises no question as to its competency or sufficiency on other subjects, from which it follows that the converse must be true: Enc. Ev. vol 9, pp. 105, 106; Stillman v. Northern Pac. F. & B. H. R. Co. 34 Minn. 420 (26 N. W. 399). “The rule is that, where an objection is made on an untenable ground, or on a ground that works no prejudice, and is overruled, such ruling furnishes no cause for reversing the judgment, because the admission of evidence against objection on some other ground would have constituted harmful error”: McDermott v. Jackson, 97 Wis. 70 (72 N. W. 375). Among authorities sustaining the principles here recognized are: Enc. Pl. & Pr. vol. 8, pp. 223-237; Ladd v. Sears, 9 Or. 244; United Oil Co. v. Roseberry, 30 Colo. 177 (69 Pac. 588); White v. Smith, 54 Iowa, 233 (6 N. W. 284); In re New York El. R. Co. 58 Hun, 610 (12 N. Y. Supp. 857); Mount v. Brooklyn, 72 App. Div. 440 (76 N. Y. Supp. 533); Burlington Ins. Co. v. Miller, 60 Fed. 254 (8 C. C. A. 612); Missouri Pac. Ry. Co. v. Hall, 66 Fed. 868 (14 C. C. A. 153); Publishing Assoc. v. Fisher, 95 Mich. 274 (54 N. W. 759); McCooey v. Forty-Second St. R. Co. 79 Hun, 255 (29 N. Y. Supp. 368); Frankel v. Wolf, 7 Misc. Rep. 190 (27 N. Y. Supp. 328); People v. Frank, 28 Cal. 508.

In McCooey v. Forty-Second St. R. Co. 79 Hun, 255 (29 N. Y. Supp. 368), a physician was called to testify as an expert, Avhose testimony was objected to, and the overruling of the objection was assigned as error. The court in passing on this point say: “The next objection relates to a hypothetical question asked of a doctor, and which is sought to be sustained by the line of cases which hold that the question must contain the facts assumed, so that the jury can have before them the facts in the expert’s mind upon which he bases his answer to the hypothetical question. These cases are not available to the appellant, because his' objection was not put upon the ground that the question did not contain all the facts necessary to enable the expert to answer; but upon the ground of its ineompeteney.” The court there held that such questions were objected to, not as- to form, but as to being incompetent, and the objection thus made was not sufficient.to call the attention .of a trial judge to the grounds relied upon, for which reason there was no error. In State v. Martin, 47 Or. 282 (8 Am. & Eng. Ann. Cas. 769: 83 Pac. 849), a physician called as a witness testified that he was a graduate of a medical school an'd a licensed physician, and detailed the condition in which he found the injured person concerning whom he was interrogated, whereupon he was asked his opinion as to the effect of the injury, etc., which was objected to on the ground-that it was incompetent, but overruled, and the witness answered; it being maintained that, as no testiomny had been given tending to show the qualification of the • physician testifying, either by experience or study, an error was committed in permitting him to answer. It is there held that the objection to the question as being incompetent' was not sufficient to raise the question as to the qualification of the witness. For the same reason we think an objection to a question asked an expert witness on the ground that he is not qualified to testify would not include an objection on the ground that the proper hypothesis had not been given. In discussing the effect as to the objéetion relied on in State v. Martin, Mr. Justice Moore says: “The object of every objection interposed at the trial of a cause, and of the exception to the court’s ruling -thereon, is-to incorporate into the bill of exceptions ' the particular legal proposition submitted to and decided by the trial court, so that upon an appeal from its ruling an appellate tribunal may be able to review the identical question considered. As the objection which was made related to the alleged ineompetency of the question,' and not to - the incomp eteney of the witness to express an opinion,' the legal principle now insisted upon was evidently not considered by the trial court, and, this being so, no error was committed -in permitting Dr. Thomas to answer the question propounded after he had testified that he was a graduate of a medical school and a licensed physician, thus showing a prima facie qualification.”

Other errors are assigned, but not argued, nor do they appear material. The record disclosing, no material error, the judgment of the court below should be affirmed. Arrikmed.