Keller v. Town of Gilman

93 Wis. 9 | Wis. | 1896

WinsLow, J.

The principal contention made by the defendant as a ground for reversal of this judgment is that evidence of the declarations and complaints made by the injured woman to her mother and husband from time to time were erroneously received in evidence. The rules with regard to the reception of this class of evidence in cases where the extent of an injury is under investigation are quite well established. They may be briefly recapitulated as follows: First. The statements and declarations of a patient as to his pains and feelings, when made to a physician for .the purpose of treatment, may be given in evidence. Second. Such statements are not admissible when made to an expert, after action brought, in order to enable him to testify as a witness at the trial. Stone v. C., St. P., M. & O. R. Co. 88 Wis. 98, and cases there cited. Third. All persons may testify as to facts within their observation as to the physical condition of another with whom they have consorted; for example, whether such person appeared to be in good or bad health, sick or well, suffering from pain or disease or enjojr-ing health. Wright v. Ft. Howard, 60 Wis. 119; Smalley v. Appleton, 70 Wis. 344. Fourth. When bodily pain is in issue all persons may testify as to expressions, gestures, or exclamations indicating present pain, rvhether made at the time of the injury or afterwards. McKeigue v. Janesville, 68 Wis. 50. Fifth. Witnesses are not permitted to testify to complaints or statements of physical condition or feelings made by an injured person -which were made in answer to a question, or which are narrative in their nature, and which are not a part of the res gestee. Tebo v. Augusta, 90 Wis. 408.

At first sight, it might seem as if the last-above rule conflicts with the conclusions reached in Bridge v. Oshkosh, 71 Wis. 363. On page 367 of the opinion in that case it is said that “ the admissibility of complaints made by the injured person, either to his attending physician or others, is clearly sustained by the following authorities.” The cases which are then cited, however, do not justify the broad statement of the opinion. They are cases which lay down the principle laid down in proposition fourth, supra; viz. that where the question of bodily pain is in issue the exclamations, expressions, and gestures and complaints of the injured person, which usually and naturally indicate a present existing pain, may be given in evidence, but that anything in the nature of narration or statement of symptoms is to be excluded. See a careful statement of the proposition in Bacon v. Charlton, 1 Cush. 581. This is undoubtedly the rule intended to be approved in Bridge v. Oshkosh, and it does not, when properly understood, conflict with either of the rules laid down.

In the light of these rules, there was very little of the testimony introduced in the present case which was incompetent. It is unnecessary to state the questions and answers in detail. It is sufficient to say that the husband and mother of the injured woman were allowed, against objection, to testify to the apparent physical condition of the woman after the accident, and to her apparent ability to move about and to do lifting and ordinary housework, for six months after the accident. All this was clearly admissible under the third rule above laid down.

There were two statements made by the mother which should have been excluded, under the fifth rule supra. They were to the effect that the injured woman said that when she laid down she was dizzy, and that she complained of her lungs hurting her, and her back, also. The admission of this evidence was error, as it seems to have'been narration, rather than exclamations caused by present pain.

There was also error in allowing certain questions to be asked on the subject of the value of the wife’s services. In these questions the inquiry was put to the husband as to how much her services were worth to him. This was, of course, a wrong test. The question was as to the value of her services generally, not their value to any particular person.

However, we do not regard either of these errors as working any prejudice, in any possible way, to the defendant. It stands as a verity in this case that the plaintiff suffered damages by reason of a defect in the highway and is entitled to recover therefor. He has recovered but $172.50, of which $109 was for pecuniary damages to property, and money outlay, which was undisputed, thus leaving but $63.50 for the value of his wife’s services during sis months that she was disabled. It was shown by competent and undisputed testimony that she was strong and healthy before the injury; that she was unable to do anything for two weeks, and could not do her ordinary housework for sis months. There were competent questions and answers on the subject of damages from loss of service which would justify a larger verdict than the one given, and there was nothing to controvert them. In this situation we cannot regard the errors spoken of as in any way prejudicial, and hence they furnish no reason for reversal of the judgment.

The brief of the appellant is disrespectful to the trial court, and it will be stricken from the files, under Rule XXYII.

By the Court. — Judgment affirmed.