285 N.W. 187 | Iowa | 1939
On October 23, 1935, defendant was engaged in retail merchandising in the city of Keokuk. During the noon hour of that day plaintiff and her daughter entered defendant's place of business "just shopping, looking around," and ascended a stairway to a second floor room where linoleum rugs were kept on display and for sale. The rugs had been placed on end in a manner that need not be detailed. One of the rugs, 9x12 feet in size and weighing about 38 pounds, toppled over and struck plaintiff a glancing blow on her head and shoulder. She seeks damages in this action, claiming that the blow caused "traumatic neurosis". There is also reference in the testimony of her expert witnesses to "traumatic psychoneurosis". There was a verdict for plaintiff and a judgment rendered thereon. Defendant has appealed.
The case was tried on the theory that plaintiff was defendant's invitee to the premises. Plaintiff claimed that in several respects the defendant failed in its duty to be reasonably sure that it was not inviting plaintiff into a place of danger and in its duty to make the premises reasonably safe for the visit.
One of the matters plaintiff sought to prove was the extent of her alleged injuries. Relative thereto she offered the testimony of an expert witness, Dr. Holmes, a physician who at no time treated plaintiff. Appellant urges the court erred in overruling objections to the testimony of this witness and we are constrained to hold that there was such error and that it was prejudicial. The record reveals that a week or 10 days before the trial, it then being nearly a year since the alleged injuries, this witness made two physical examinations of plaintiff, whom he had never known. Thereafter, as plaintiff's expert witness he was asked two hypothetical questions. But preceding *958 these questions, and to furnish a foundation, the witness related in detail what plaintiff told him during the physical examinations. Among other things, this witness testified that plaintiff told him she had sustained an injury in defendant's store, and the witness related what plaintiff told him was the manner in which the accident happened. He also testified that plaintiff described to him her condition of health before the injury, and told him that following the injury she had not seen a well day, had never been free from pain, that it was always there, that she was easily exhausted, that she could not sleep, that her appetite was disturbed, that she mentioned dizzy spells, and said she had nausea for no special reason. This testimony was directly elicited by plaintiff's counsel and was admitted over defendant's objections that the questions called for hearsay testimony and for self-serving statements on the part of the plaintiff, statements that were self-serving so far as plaintiff was concerned. In making his answers to each of the subsequent hypothetical questions the witness assumed that these things plaintiff told him were true. The witness testified also that when he physically examined plaintiff the expression of her face and the muscle response to touch were such that he felt she was suffering from pain. In response to the first hypothetical question the witness expressed as follows his opinion concerning the condition of plaintiff at a time of the trial, — "I think she is suffering from neurosis." In answering the second hypothetical question the witness testified that in his opinion the neurosis was precipitated by a trauma, and that the trauma was one plaintiff complains of or stated happened in October 1936 at Montgomery Wards. In answer to each hypothetical question, in addition to what plaintiff told him, the witness also took into consideration the physical examination he had made.
"As a general rule the law excludes all mediate or hearsay evidence, of mere hearsay declarations, made to those who are sworn and examined." The controlling reason for its rejection is that it cannot be subjected to the ordinary tests which the law has provided for the ascertainment of truth — the obligation of an oath, and cross-examination, things which the law in ordinary cases invariably requires. Ibbitson v. Brown,
BLISS, MILLER, OLIVER, HALE, STIGER, and HAMILTON, JJ., concur.