189 Iowa 1364 | Iowa | 1920
“Q. Now this is a question that I presume is direct examination, if the court please, — I omitted it. I want to ask you, Doctor, to tell this jury whether or not, in the treatment of this plaintiff, you gave him the benefit of your best judgment and best skill.
“Mr. Senneff: We object to that as not proper redirect examination, and as incompetent, argumentative.
“Court: Sustained. I think that involves a matter for the jury to tell. He can tell what he did, and let them judge whether that was the best.
“Q. I will ask you, Doctor, whether, in the treatment of this plaintiff, you at all times gave him your best attention.
“Mr. Senneff: We object to that as not redirect examination, incompetent, argumentative. (Sustained. Exception.)
“Q. And whether or not you gave him your best skill.
“Mr. Senneff: We object to that for the same reason. (Sustained. Exception.)
“Q. And whether or not you gave him your best judgment.
“Mr. Senneff: We object to that for the same reason.,
“The court: That is sustained. If I change my view*1366 on that, why, you can renew your question. (Defendant excepts.)
“Mr. Dutcher: I want to be frank with the court. I will submit a case in. the morning that I. think is proper on that.”
The trial court did not thereafter indicate that he had changed his view. The matter was not alluded to again. Coiinsel for appellant seemed to concede that the question was not redirect examination. Possibly the court had a discretion as to whether it would permit the questions on redirect examination, or require the witness to be recalled. It is apparent that the effect of the ruling was to consider the witness recalled, since the court did not sustain the objection on that ground.
Appellant cites and relies upon the case of Ingwersen v. Carr & Brannon, 180 Iowa 988, 1012. In the Ingioersen case, like evidence was offered and rejected, and this was one of the grounds of reversal. We also said in that case that we thought the rule different with a professional man: that is, that he was different from a mechanic or artisan. As bearing on this, see Almond v. Nugent, 34 Iowa 300; Kline v. Nicholson, 151 Iowa 710, 713.
No cases are cited by appellee, as against the Ingwersen case. Appellee concedes that the ruling was erroneous, for they say that it “constitutes the only error made by the court in this case. * * * While it must be conceded that defendant was entitled to have this question asked, under the ruling of this court in the case cited, the mere asking of it clearly indicated what the answer would be,” etc.
They concede, too, that, if the Ingwersen case had been called to the court’s attention, the ruling would have been different. Appellee’s only answer is that the exclusion of the evidence was nonprejudicial, and that counsel for defendant did not call the court’s attention to the matter the next morning. As to the last proposition, the record does not show that counsel for defendant did not present the authority the next morning, though it is so stated by appellee in argument. There might be a question of good
“Q. And what would you say as to whether the patient could endure that pain ivithout sedative, and without the loss of any Aveight?”
Plaintiff objected, as calling for a conclusion, and not the subject of expert testimony, and the court sustained the objection, stating that it was a conclusion, as to the endurance, especially.
Appellant cites Purcell v. Jessup, 99 App. Div. 556 (91 N. Y. Supp. 165); Greenway v. Taylor County, 144 Iowa 332, 336. The question asked in the Purcell case was:
“In your opinion and medical experience, is it possible for a child to sIioav no symptoms of diphtheria on one day, and develop a fatal case of diphtheria the next?”
The question in the Greemoay case was:
“What do you say as to whether he has suffered, during*1369 the time since this injury, a great deal of pain?”
This was held equivalent to asking whether the injuries -were of such a character as would be likely to cause pain, and it was held that it was competent; and it was further said that it is competent for the physician to say whether, in his judgment, the injuries of a person are such as would be likely to produce pain. We think the question asked in the instant case is broader than the questions in the cases cited. Dr. Phillips had already said that, in such a situation, it would be very painful. This seems to be as far as the cited cases go. Possibly the defendant could have elicited the information sought by framing the question somewhat differently: that is, for instance, how severe the pain would be, and whether the effect of that would be to cause the loss of weight, etc. We are not suggesting the form of the question, but think the question was objectionable, though perhaps we would not reverse on that ground alone.
Error 3 is similar to the question just noticed.
Error 4 relates to a question propounded by plaintiff to one of his medical witnesses, based on the assumption that the bones were out of alignment, when the cast was put on. The objection was that there was no evidence that the bones were out of apposition. The objection was overruled, because there was, in the opinion of the court, evidence which might be construed either way, as to whether they were or were not in apposition. We think such is the fact.
A number of grounds of negligence charged in the petition were submitted to the jury. The complaint of the instructions is, for the most part, that some of these were submitted, of which there was no evidence. The trial court withdrew, or attempted to withdraw, from the consideration of the jury, one or perhaps more of the grounds of negligence. Appellant contends that this was not clearly done, and that the jury were confused. The evidence may not be the same on another trial. The matter of withdrawing issues can be easily cured on another trial, if there is
These and other matters complained of are such that they are not likely to occur on a retrial. For the error pointed out, the judgment is reversed, and the cause remanded. — Reversed and remanded.