78 Ind. App. 647 | Ind. Ct. App. | 1922
Lead Opinion
— Appellee filed her claim against the estate of appellant’s decedent, who was her mother, asking an allowance against the estate of $1,200 for twenty-four weeks’ service at $50 per week, for nursing and caring for said decedent.
There was an answer in denial, and a trial by jury, which resulted in a verdict for $960. After appellant’s motion for a new trial was overruled, an order of allowance against the estate was rendered for the amount of the verdict. The error assigned is the court’s action in overruling the motion for a new trial.. The substantial question presented by the motion is as to whether the court erred in overruling appellant’s objection to a hypothetical question propounded to Dr. J. O. Taylor, witness for appellee, which question embraced, among other elements, the following: That the person for whom services were rendered was afflicted with arteriosclerosis, or hardening of the arteries, for three years or more and had all of the attendant physical ills; that her limbs were badly swollen, so much so that the skin burst, requiring additional treating and care; that the nurse in charge furnished the food for the sick person, also for herself, and the fuel, and did the washing for the sick person, both of the bedding and clothes, and employed such help as was required and paid the help with her own money. Appellant objected -to the question for the reason that there was no evidence as to the foregoing hypothetical elements. The objection was
We find no evidence that the decedent had been afflicted with arteriosclerosis, or hardening of the arteries, for three years or more, with all of its attendant ills; no evidence that the decedent while with Mrs. Bowers, the appellee, had a dropsical condition that caused her limbs to swell so that the skin burst requiring care and treatment; this condition developing after she went to the home of Mrs. Mounsey, where she died; no evidence that appellee furnished food and fuel except as it may be inferred that she did so while the mother was in her home; no evidence that appellee employed such help as was required and paid the help with her own money. There was no other evidence by appellee as to the value of her services. There was no evidence corroborating Dr. Taylor’s evidence.
Amanda F. Meyers, a witness called by appellant, testified that she nursed the decedent in the year 1917, and that the value of services such as were required for her was $15 per week.
Ellen Jane Borne, a witness for appellant, had been nursing for fifteen years, and she thought that $15 would be reasonable compensation for such services as were required.
Dr. George E. Fulton, a medical practitioner for forty years, testified that the value of such services as were required for the deceased would be from $12.50 to $15. We mention this testimony as to the value of services, not for the purpose of weighing the evidence, which is not our province, but to make it apparent that, assuming that all the witnesses intended to testify conscientiously, Dr. Taylor must have taken into consideration elements that the other witnesses did not consider, and because of the burden of
Appellee’s learned counsel, contending with much force that the hypothetical question was a proper question, says that it is for the jury to determine as to the value of the question, and as to whether the facts have been proven. It is undoubtedly
There is another cogent reason why this judgment must be reversed. Dr. Taylor had been the deceased’s attending physician, and he testified that all the knowledge that he had of her he had gained while making professional calls. He was properly, of course, precluded from testifying as a witness to knowledge gained while acting in such capacity. On cross-examination he testified that he drew on information of his own in answering the hypothetical question. Appellant thereupon moved the court that the answer be stricken out, which motion was overruled. It is elemental that, in answering a hypothetical question, a witness can take into consideration no facts within his own knowledge and not in evidence — certainly not when the facts within his own knowledge which he takes into consideration are facts about which he is wholly incompe
“The opinion of an expert must be based upon proved or admitted facts, or upon such as are assumed for the purpose of a hypothetical question. The answer of the witness was not based upon facts stated by him. What he knew about the case might, and doubtless did, embrace much more than he had stated to the jury; how much or what he knew about the case was, in a great measure, unknown to the court and jury. It is the clear right and duty of the jury to judge of the truth of the facts upon which the opinion of the expert is based. If his opinion is based upon what he may suppose he knows about the case, upon facts, it may be, altogether irrelevant and unknown to the jury, it would be impossible for them to pass upon the truth of the facts upon which the opinion may be based, or to apply the opinion of the expert to the facts. Neither court nor jury can know the facts upon which the opinion rests. It is obvious that where the expert delivers his opinion from what he supposes he knows about the case, he must assume and exercise both the functions of the court and the jury —he determines that what he knows is both relevant and true. The relevancy of the facts must be determined by the court; their truth by the jury. The witness cannot pass upon such questions. ■ He must give his opinion upon facts testified to by him, other witnesses, or upon facts agreed to or assumed hypothetically. Guetig v. State, 66 Ind. 94 (32 Am. R. 99). In the case of Kempsey v. McGinniss, 21 Mich. 123, in speaking of expert or professional witnesses, the court says: ‘But in the case of such professional witnesses, as well as in that of unprofessional witnesses, — who are allowed to give their*654 opinions only from personal observation, — the facts upon which the opinion is founded must be stated, and the jury must be left to determine whether the facts stated, as well as the opinions based upon them, are true or false. And it is obvious that when such opinions are given without personal knowledge or observation, such opinions may be based either upon facts observed and stated by other witnesses who knew them, or upon a state of facts assumed for the purpose as a hypothetical case, which the jury may find from the evidence.’ ”
Alleged errors in giving instructions and alleged improper conduct of counsel are not necessarily involved in another trial, and we therefore do not consider them.
The judgment is reversed, with instructions to the trial court to grant a new trial.
Concurrence Opinion
Concurring Opinion.
— I concur; but I am of the further opinion that the matter involved in the hypothetical question is not a proper subject for expert testimony. See 17 Cyc 121; Storms v. Lemon (1893), 7 Ind. App. 435, 34 N. E. 644; Wahl v. Shoulders (1896), 14 Ind. App. 665, 43 N. E. 458; Boyd, Admr., v. Starbuck (1897), 18 Ind. App. 310, 47 N. E. 1079.