150 N.W. 271 | N.D. | 1914
Lead Opinion
(After stating the facts as above). Counsel for appellant has made seventy-eight assignments of error in this case, and states in his brief that these various assignments ’ “will convince every unprejudiced mind that the defendant did not have a fair and impartial trial, and that the rulings of the court were highly prejudicial.” We cannot see any merit in any of these assignments, and yet we do not plead guilty to prejudice in this matter, nor can we find anywhere in the record any indication of prejudice on the part of the learned trial judge.
The first assignment of error claims that it was prejudicial error for the trial court to refuse to permit the defendant to introduce testi
The cases cited by counsel for respondent, indeed, are all strictly criminal cases, involving offenses such as murder, larceny, and assault and battery; and though, in addition thereto we have been able to find the cases of Hawkins v. State, 21 N. J. L. 630, Dally v. Wood-bridge Overseers, 21 N. J. L. 491, and Webb v. Hill, 115 N. Y. Supp. 267, which seems to hold to a contrary doctrine (and these are all which we can find), all of them treat the action as criminal, or at least quasi-criminal, and in none of them is to be found a reference to a statute such as ours, which provides that “the trial of such proceedings . . . shall be governed by the law regulating civil actions.” Rev. Codes 1905, § 9653. The case at bar, indeed, seems to come squarely within the rule that in a civil action (and though quasi-criminal in its nature this action, as far as procedure is concerned, must be treated as a civil one), and except iff the cases of slander and libel, the character of the defendant is not in issue, and that evidence in relation thereto is therefore inadmissible. Jones, Ev. § 148.
We find no reversible error in the rulings of the trial court on the cross-examination of the plaintiff’s witness, Dr. Chagnon. It is argued that the doctor had testified on direct examination that the normal period of gestation is 270 days; that the medical authorities and physicians laid down as a minimum and maximum, 270, 260, and 265 days, or a few days over. He then testified, over the objection of the
On the cross-examination the following took place.
Defendant’s counsel: Q. Let’s see if you will agree with what I am going to read to you (reads). “The duration of pregnancy has an important bearing upon the questions of legitimacy and paternity. The signs of pregnancy, time of quickening, etc., have already been considered in another connection.”
Plaintiff’s counsel: Just a minute. If the court please, we object to this as not proper cross-examination. It doesn’t seem to me counsel should read this. . . .
The court: Let’s see the hook, and I can see just what is coming.
Plaintiff’s counsel: Our objection is that it is not proper to use a medical book of this character on cross-examination.
The Court: Objection sustained.
Defendant’s counsel: I would like to make a little offer of proof.
The Court: Well, all you want to do is to read from a hook. You can ask him any question you have a mind to, bearing upon that subject, but the only extent of this rule is that you can’t read from the book.
Defendant’s counsel: I can’t use the book?
The Court: That is the point; you can’t use the book. You can ask any question as to the subject-matter in controversy, but you can’t read from the book.
Defendant’s counsel: Then" I understand, your Honor, it isn’t permissible to examine an expert witness as to whether or not he agrees with certain language that is laid down in a treatise; is that the extent of your Honor’s ruling ?
The Court: You can ask that, but you can’t read from the book.
Defendant’s counsel: The defendant now offers to prove hy questions to be put to this witness, based on the testimony of the other authors, that there isn’t a case on record of a full-grown child where the period
Plaintiff’s counsel': Objected to upon the ground that it is not proper cross-examination, and irrelevant and immaterial, and that the rules of law do not permit the use of text-books in the manner sought to be used by counsel in his offer, and that the effect of the offer is to impeach the witness by the use of a text-book, and it comes squarely within the rule as laid down by all the authorities.
The Court: The court in ruling irpon this question makes the following statement: At the time this objection was first interposed, counsel for the defendant, as will appear from the record, had in his hands a book entitled “Medical Jurisprudence, Student’s Series, by M. D. Ewell,” and had said book open at page 190, and was readiñg from ¶ 2 on said page, and, as stated by counsel, expected to read the balance of that paragraph, including what Dr. Tiddig said. The court believes that this method of procedure is contrary to the rule as laid down by Jones and other authorities, and especially as found in Jones on Evidence, 2d ed. p. 782, wherein the author states: “It would be a mere evasion of the general rule under discussion if counsel were allowed on cross-examination to read to the witness portions of such works, and to ask if he concurred in or differed from the opinions there expressed; hence this is not allowed.” The same being supported by Marshall v. Brown, 50 Mich. 148, 15 N. W. 55; People v. Millard, 53 Mich. 63, 18 N. W. 562; Bloomington v. Shrock, 110 Ill. 219,
Plaintiff’s counsel: But I think the court has it wrong.
The Court: I don’t so understand it.
Plaintiff’s counsel: The rule is here stated, starting at the bottom of page 731 (reads). “But with reference to offering books in evidence the rule is that when an expert has given an opinion and cited a treatise as his authority, the book cited may be offered in evidence by the adverse party as impeaching testimony!”
The Court': That is what I intended to say.
Defendant’s counsel: Counsel for the defendant desires to have the record show that he has no intention of offering this book in evidence; that his intention is to read from this book and from other like authorities, standard works on this subject, certain hypothetical questions to be put to this witness as applied to the case at bar, for the purpose of showing the jury that the child that is in controversy here was a full-grown normal child, and that under all the sound rules must have been begotten at a period of not less than 265 days and not to exceed 285 days, and that from the appearance of the child the witness is unahle to state whether it was a 280-day child or 265-day child.
The Court: Well, I think that the record is complete enough. You don’t misunderstand me, do you Mr. Hildreth ?
Mr. Hildreth: No sir, I don’t. I understand. I offer to examine this witness along the line above stated.
Plaintiff’s counsel: This offer is objected to on the ground that the use of the text-books in the manner contemplated, namely, using them in framing hypothetical questions, is a mere evasion of the rule as
The Court: Objection sustained.
Counsel for defendant claims that he was unduly restrained in his cross-examination. We do not so hold, however, and have merely cited the proceedings at length because of the strenuousness of counsel’s contention, and his constant imputation of prejudice on the part of the trial court. If counsel for defendant desired to refute the testimony of the witness by the use of the books in question, he should have first asked the witness if he based his opinion on any medical works, and, if so, on what; and then, and not till then, was he entitled to offer the book, or any book, in evidence for the purpose of impeaching this testimony. The rule is too well established to need amplification here. See Jones, Ev. § 578; Abbott, Civil Trial Brief, 329. And it is equally well established that it would be a mere evasion of the general rule if counsel were allowed on cross-examination to read to the witness portions of medical works, and to ask him if he concurred in or differed from the opinions there expressed. Marshall v. Brown, 50 Mich. 148, 15 N. W. 55; People v. Millard, 53 Mich. 63, 18 N. W. 562; Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 678; State v. Winters, 72 Iowa, 627, 34 N. W. 475. Such procedure, indeed, would be nothing more or less than impeaching the witness by a text-book on which he had in no way relied, and would be the same as offering in evidence the text-book read from. Jones, Ev. 2d ed. § 579.
But counsel for defendant further complains that in spite of this ruling the court permitted the plaintiff to introduce a certain work of Professor Edgar, upon the cross-examination of defendant’s witness, Dr. Yidal. The ruling of the learned trial judge, however, was entirely correct, and it merely serves to illustrate the point under consideration,
It is “Cross-Examination by counsel for plaintiff.
Q. Doctor, this question of the average period of gestation is a question concerning which there is a great deal of dispute in the medical profession, is there not? I mean by that, great deal of difference of opinion ?
A. There is a few days. Matter of a few days in — between the best authorities; matter of two or three days one way or another. That is, some of the authorities lay down a lower average of gestation than others. That is true. I think I am familiar with a great number of authorities upon what the authorities hold upon this subject. I am familiar with what Professor Edgar holds. He is professor of Obstetrics in Cornell Hniversity. He is a leading authority on the subject in this country, and a very good authority.
Q. Do you recall what he lays down as the average period ?
Defendant’s counsel: Objected to as incompetent, irrelevant, and immaterial; improper cross-examination, and I assume that it is practically what I attempted to ask.
By the Court: Now, it just illustrates the objection. It is a perfect illustration of my rule. The objection is overruled. You may answer the question.
Exception by defendant.
A. I believe 274 days. I am not positive; but that would be my opinion. I am not positive that it wasn’t 272, but that would be my impression.
Q. Well, to refresh your recollection, doctor, I will call your attention to the following language found at page 144 of Professor Edgar’s work on the practice of obstetrics, 3d edition — 1911 edition— which language reads as follows:
Defendant’s counsel: Just a moment. I object to the counsel’s using the book to cross-examine this witness. I haven’t been permitted
By the Court: Again the court holds with the rule laid down by Jones and others. This is cross-examination, and under the rule in cross-examination this is permissible. You may answer the question.
Plaintiff’s counsel: I haven’t quite finished. I didn’t want to read until the court rules. (Continued reading): “We learn from experience that the average apparent duration of pregnancy is ten lunar or nine calendar months, or 40 weeks or 280 days from the beginning of the last menstrual period, or 272 days from the date of conception.” Now, from that language, doctor, would you say that the average period of gestation from the date of conception, laid down by Professor Edgar, was 274 days or 272 days?
A. 272.
Counsel for defendant: Objected to — wait a minute, doctor. Objected to as incompetent, irrelevant, and immaterial; improper cross-examination.
The Court': Overruled. You may answer.
Exception by defendant.
A. 272. It reads from the book; it must be right. My. impression was 274. I have a good many authorities; I haven’t taken pains to look them up for a long time. Yes, the authorities differ. Some of them place it as low as 268 days; some 268 days; some 269 days; some 272 days. I testified that in my opinion the average number of days of gestation was 278. That is figuring from the first day of the last menstrual period. Assuming that, a woman’s menstrual period- was November 16, 1911, you would figure this 278 days from that day. Now if the intercourse took place November 25th, or nine days later, then if I was going to figure the period of gestation from the date of intercourse, I would subtract 9 days from 278. That would make it 269 days from- the period of intercourse to the date the child was born. But the 278 days I gave as a general rule dates from the first day of the menstrual period preceding, and if I was going to figure from the date of intercourse I would, of course, deduct the days between.
Q. And in the supposed case it would make it 269 days as the actual
A. Yes sir. That is all it amounts to. Supposing Professor Edgar in fixing his rule would take 1,000 cases of pregnancy and childbirth, there would be a number of cases that would be a great many days less than the average. Some of them, say, 250 days; some of them 252 days; some of them 254 days; some of them 258 days, and as you got up to the average the number of cases would increase at a given date. Some of them would run 274, 276, and so on, and he would take and add them all together, and divide it by the number of cases, and get the average.
We think there was no error in permitting the complaining witness to testify that the defendant had, before the acts of intercourse, complained of, led her to believe that they were to be married. This evidence tended to show the relationship of the parties, and was corroborative in its nature, just as much so in fact as evidence that the parties had been seen together at or about the times of the alleged inter-courses.
There is no merit in the objection that defendant’s counsel was not allowed to cross-examine the complainant in regard to her relations with the man Anderson. Even if the privilege was improperly denied in the first instance, the error, if any, was entirely cured by the granting of the privilege, and the full use thereof, later on in the trial, and when the plaintiff was recalled. Nor was there any merit in the contention that defendant was not allowed to question plaintiff as to presents alleged to have been given to her. The questions were very general, and hardly confined to the times in issue. There, too, must be some reasonable limit to cross-examination; and receiving presents is hardly in itself evidence of illicit relationship.
There is certainly no merit in appellant’s contention that the trial court erred in his remarks to counsel during his argument to the jury, or that he thereby “emphasized his prejudice that he had manifested during the case.” During counsel’s argument he said to the jury: “This is II. E. Miller. I could say more. I couldn’t say less. He is
It was not error to refuse to allow the complainant to testify on cross-examination as to whether she had asked the defendant to go over to Moorhead with her. The question in the first place was not proper cross-examination, as it did not touch upon any subject which was treated upon in the direct examination; in the second place, the time alleged was outside of the period of gestation, and the evidence could only have been asked for the purpose of injuring the plaintiff’s
We do not agree with counsel for appellant that the evidence is not sufficient to sustain the verdict. The plaintiff positively swore to-sexual intercourse with the defendant on November 27th 1911; that she had a menstrual period on November 16th, and did not have it on December 16th, nor until after the child was born, on August 10, 1912. There, too, is corroborating evidence in the record, which, though not. very strong or very conclusive, has yet some weight. We have no right to interfere with the verdict of the jury. State v. Peoples, 9 N. D. 146, 82 N. W. 749. It seems generally to be held, indeed, that in the absence of a statute it is not necessary to a conviction that the testimony of the complainant should be corroborated by other evidence. 2 Ene. Ev. 355.
Counsel next makes a general statement to the effect that the court’s-charge is erroneous. He, however, points out- no particular portion of the charge which is subject to criticism. Nor does he give us any idea wherein its defects consist. This is nothing more or less than an abandonment of the objection. The same is true of the objection that, the court erred in refusing to give the instructions asked for, and the assignment of error that “the court erred in denying the requests, marked 1, 2, and 3” of the defendant, in the instructions to the jury. All that counsel says in his brief upon this proposition is that “these requests and instructions, when taken together, clearly indicate that, the rights of the defendant were not safeguarded by instructions which the court should have given to the jury in a case of this character.”' It would certainly seem that this court should have something more-
Nor is there any merit in appellant’s contention that no evidence was taken as to the earning capacity of the parties to the suit, nor of the “assistance” that the mother might be able to furnish in the maintenance and education of the child, and that therefore the judgment is invalid which orders the defendant to pay the sum of $120 a year until the 10th day of August, 1917, and $150 from that date to the 10th day of August, 1928. The statute (§ 9655, Rev. Codes 1905) expressly provides that the court, in cases of a verdict of guilty, '“shall render such judgment as may seem necessary to secure, with the assistance of the mother, the maintenance and education of such child, until such time as the child is likely to be able to support itself. . . . The court may at any time, upon the motion of either party, upon ten days’ notice to the other party, vacate or modify such judgment, as justice may require.” This statute, of course, presupposes that the court shall reasonably acquaint himself with the necessities of the case, but it nowhere provides for the method nor how the information shall be obtained. Here the station in life, age, and occupations of all of the parties interested had been fully exposed upon the trial, and there was clearly no necessity for taking any further testimony. The sums ordered to be paid were certainly not excessive. So, too, not only did defendant’s counsel, who appears to have been present at the time, take no exception to the methods pursued by the trial court, or make or ask permission to make any proof upon the subject, but the statute expressly provides “that the court may at any time, upon the motion of either party, upon ten days’ notice to the other, vacate or modify such judgment, as justice may require.”
' The judgment of the District Court is affirmed.
Rehearing
On Rehearing.
We are now satisfied that our original opinion must be modified and the judgment be reversed, and that the learned trial court erred in its rulings as to the cross-examination of Dr. Chagnon, and failed to distinguish between the use of medical books for the purpose of cross-examination merely, and to test the knowledge and reading and
Although there is some conflict in the authorities and much obscurity of thought therein to be found, the distinction seems to be very clear. It is' that, where the expert has testified from his own experience, and from his personal experience alone, and has not based his opinions upon any specific authorities or upon the authorities generally, the scientific treatise may not be read, either directly or indirectly, to the jury or to the witness in the presence of the jury, so that in any way their authority may be obtruded upon them. Hypothetical questions may, of course, in all instances, be framed from the books, but the books themselves should not be paraded before the jury. Brown v. Springfield Traction Co. 141 Mo. App. 382, 125 S. W. 236.
Where, however, the witness has not testified as to the results of his experience alone, but of his reading also, or where the subject under consideration is of such- a nature that his opinion must necessarily be based upon his readings and the data and conclusions of the scientific authorities, rather than upon his individual experience, the witness may be cross-examined as to the authorities generally, and may be asked if he agrees with extracts which are read to him therefrom. This method of examination is allowed in these cases, not for the purpose of rebuttal, but to test the learning of the witness and the reliability and the nature of his data, and is permissible, even though no specific book has been referred to by him. It is allowed under the liberal rule which governs cross-examination, and not for the purpose of refuting the testimony of the witness by reading such authors into the evidence, which can only be done where the witness admits either in his examination in chief or in cross-examination that he has based his opinion upon such specific authors. See MacDonald v. Metropolitan Street R. Co. 219 Mo. 468, 118 S. W. 18, 16 Ann. Cas. 811. Where this is done, however, the proper practice is for the court to caution the jury that it is the testimony of the witness, and not what is read from the book, that constitutes evidence in the case. Ibid.
When we apply these principles to the case at bar we become satisfied that the learned trial court erred in regard to the examination of Dr. Chagnon. It is clear from the record that Dr. Chagnon based his opinion largely upon his reading and upon the authorities, although he referred to no specific book. Counsel for defendant, then, should have been allowed to read to him from and to question him upon the medical authorities. “We cannot conceive,” says the supreme court of Nebraska in the case of Hutchinson v. State, 19 Neb. 262, 27 N. W, 113, “that it would be possible, by any rule of evidence, to base the testimony in chief of the witness upon his experience in obstetrics. For
In the case of State v. Winter, 72 Iowa, 627, 34 N. W. 475, the question was asked upon the examination in chief, and not upon cross-examination. “He, [the witness]” the court said, “was then asked the following question: 'Have you read the article by Hr. Casselman, in the American Journal of Insanity, in which the author says, Mania,— instantaneous, temporary, fleeting, — a disease which breaks out suddenly like the sudden loss of sense by some physical disease; the subject is urged in a moment to automatic action, which would not have been foreseen ?” If you say you have read the above quotation, state whether the same agrees and accords with your knowledge and experience on the subject.’ On the objection of the district attorney the court excluded the question. It is not claimed that the question was asked with the view of laying the foundation for the introduction in evidence of the article referred to, but the object was to elicit the opinion of the witness. It will be observed, however, that the answer of the witness (which we assume would have been in the affirmative) would have been but a reiteration, in another form, of the opinion he had already expressed. He had already testified to the existence of the very form of mania referred to in the article. The fact or theory sought to be established was material and important, but as the witness had already clearly expressed his opinion as to its truth, the court did not abuse its discretion in refusing to allow the question, which, as we have said, sought only to elicit a reiteration of that opinion. The same witness was asked the following question, which the district court ruled was incompetent: 'State whether delusion or transitory mania is a condition recognized by medical authorities.’ Il would be admissible, perhaps, on the cross-examination of d medical expert, to inquire of him as to the teachings of the authorities in his profession. The object of such examination, however, would be to test the accuracy of the expert’s knowledge. But the question in this case was asked not with this view, but for the purpose of proving that the theory in question is taught by the authorities. But the works themselves were admissible in evidence, and they are the only competent evidence of what they teach.”
In the case of MacDonald v. Metropolitan Street R. Co. 219 Mo. 468, 118 S. W. 78, 16 Ann. Cas. 811, the court said: “In framing •questions on the cross-examination of experts, counsel held in hand medical books, and formulated questions from their language. The books were not read to the jury, but the jury could see that the examiner read from them. This method of cross-examination was objected to. The court, over objections, permitted plaintiffs counsel to adopt the scientific terminology of the author, and put the propositions to witnesses obviously asserted by him, but repeatedly cautioned the jury that what was read from the book was not evidence, and the jury should pay no attention to it; that the only thing they could consider was the evidence that fell from the lips of the witness along the line of verifying the propositions put by the examiner. Samples of these •cautionary instructions are as follows (The court): ‘The jury will not give any more weight to anything Mr. Karnes reads from the books than they would to any other questions Mr. Karnes asks, unless the witness answers questions in the affirmative, thereby making it evidence in the case. . . . It is the answers of this witness, gentlemen ■of the jury, that is evidence in this case, and not the questions.’ Error is assigned on this phase of the trial, but the point is without soundness. It has been said that it is within the discretion of the court to permit medical books to be read to the jury (State v. Soper, 148 Mo. 1, c. 235, 236, 49 S. W. 1007, but undoubtedly the better and generally accepted doctrine is that the contents of such books are not admissible as independent evidence. [17 Cyc. 421; Union P. R. Co. v. Yates, 40 L.R.A. 553, 25 C. C. A. 103, 49 U. S. App. 241, 79 Fed. 1. e. 587 •et seq.] Judge Thayer in the last case puts the grounds of exclusion on, first, such evidence is not delivered under oath; second, there is no chance of cross-examining the author; third, medicine is not an exact science, doctors disagree, medical theories are subject to frequent modification and change. But while not independent evidence, and the question is a vexed one, yet there is a legitimate use of such books, at least on cross-examination, where the testimony has taken wide range and where skilled witnesses testifying as experts base their testimony on their knowledge derived from books as well as experience, as in this
In the North Dakota case of Kersten v. Great Northern R. Co. ante, 8, 147 N. W. 787, and where an examination of the record discloses the fact that the doctor had expressly stated that he had based his opinion upon the medical writers, the court said: “The fourth complaint of appellant relates to the cross-examination of defendant’s witness, Dr. Sihler. The doctor had given his opinion as to the effect upon the brain of a blow delivered directly above the injury. Upon cross-examination he was asked whether or not certain medical textbooks and authorities sustained a doctrine contrary to that held by th$ witness. It appears that the text-book to which reference was made was offered to the witness, and that the author at that time was a teacher of surgery in Johns Hopkins University. Thus the cross-examination was evidently in good faith to test the accuracy of the conclusion given by the expert who was upon the stand. Great latitude should be allowed in the cross-examination of experts to test their credibility and knowledge. Dilleber v. Home L. Ins. Co. 87 N. Y. 79; McFadden v. Santa Ana, O. & T. Street R. Co. 87 Cal. 464, 11 L.R.A. 252, 25 Pac. 681; Jones, Ev. 2d ed. § 389; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760. AVe think the cross-examination proper.” See also State v. Moeller, 20. N. D. 114, 126 N. W. 568; MacDonald v. Metropolitan Street R. Co. 219 Mo. 468, 118 S. W. 78, and note thereto in 16 Ann. Cas. 810, 818.
In the case of Hess v. Lowrey, 122 Ind. 225, 7 L.R.A. 90, 17 Am. St. Rep. 355, 23 N. E. 156, we find the following: “Complaint is also made that the court erred in admitting in evidence extracts from certain books or treatises on surgery. It does not appear that extracts from the books were read in evidence, or admitted in evidence as such. In the cross-examination of a medical expert, the witness was asked
In Fisher v. Southern P. R. Co. 89 Cal. 399, 26 Pac. 894, 9 Am. Neg. Gas. 104, we find the following: “On cross-examination of Woolsey, a witness called as an expert by defendant, plaintiff’s counsel was allowed, against the objection of defendant, to read statements from medical works, and to ask the witness if he agreed with the authors. This is assigned as error. Plaintiff’s counsel defends the ruling here, on two grounds: (1) That the witness, on his direct examination, testified" to certain medical opinions and supported his statements by the assertion that they conformed to the authority of medical works; and he claims that the rule is that if the witness, either in direct or cross examination, relies in any manner upon the authority of medical works, generally or specifically, it is proper cross-examination to confront him with the works upon which he relies, to show that his understanding of them is incorrect, or to contradict him; and (2) that it is proper cross-examination to test the competency of the witness as an expert, or the value of his opinions. A careful examination of the evidence has convinced me that the rulings complained of cannot be defended upon either of these grounds, though the legal proposition be admitted. As to the first, it is plain that some of the extracts read have no reference to any opinions of the witness which he sought to sustain by a reference to medical writers, either generally or specifically, except in response to a direct question by plaintiff referring to such writers. As to the second ground, it is not so plain. The value of an effective
In the case of State v. Wood, 53 N. H. 484, the witness (Dr. Ferguson) had several books upon the table during his direct examination, and was apparently about to read from them when he was prevented by the objection of the state. “Upon cross-examination, counsel for the state proposed several questions similar in form to the following: Have you found, in the course of your reading or study, this sentiment in regard to oil of savin (then reading from a sheet of writing paper in his hand) : ‘Death in an hour after taking it ?’ Have you also found this: ‘A woman took one hundred drops of oil of savin every morning for twenty days and went full time ?’ or this: . . . ‘Almost fatal consequences in producing abortion ?’ or this: ‘Its properties to produce abortion have been denied by late authors, of weight and reputation?’ or this': ‘Has no action as an abortive except like other irritants?’ The respondent objected that, if he could not be permitted to put in the books themselves, such questions were inadmissible; but the state were allowed to put the questions, subject to exception, and the witness answered several of them in the affirmative. Subsequently, upon redirect examination, the respondent asked several questions similar in form to the above, as to the existence in the books of statements tending to confirm the testimony of the witness on his direct examination.”
The court on page 494 of its opinion said: “As to Dr. Ferguson’s cross-examination, we see no reason for any objection to it. He had stated, as well he might, on direct examination, his knowledge of a particular subject, not from any experience or actual observation, but from what he had derived merely from reading and studying medical authorities. Then he was cross-examined as to that general read
In speaking of this opinion, and in a case in which the general rule was announced that “an expert medical witness cannot be discredited by reading an opposite opinion from a text-book in the presence of the jury, and asking him whether it is correct, where he has in no way referred to the book to sustain his opinion or otherwise relied on it,” the supreme court of North Carolina, in the case of Butler v. South Carolina & G. Extension R. Co. 130 N. C. 15, 40 S. E. 770, said: “The last one [the opinion in question] relates to a cross-examination upon matters which the witness testified he had learned from certain medical authorities, not from experience or actual observation. The books were put in evidence, — were excluded — and the court held that upon the cross-examination counsel could be allowed to ask if the witness had not found particular theories laid down conflicting with the theory he had advanced as the result of his reading.”
In the case of Pinney v. Cahill, 48 Mich. 584, 12 N. W. 862, the
In the case of Byers v. Nashville, C. & St. L. R. Co. 94 Tenn. 345, 29 S. W. 129, the court said: “But we are of opinion that the objections to the usé of the book as first made were not well taken. The admission of such evidence is a matter largely in the discretion of the court, as well as the mode of conducting the examination. The witness Eravel was testifying not only as to the facts connected with the running of his train when the killing occurred, but also as an expert engineer, acquainted Avith and competent to testify as to the running of trains generally. When a witness is testifying as an expert, it is competent to test his hnowledge and accuracy upon cross-examination by reading to him, or having him read, extracts from standard authorities upon the subject-matter involved, and then ashing him whether he agreed or disagreed with the authorities, and comparing his opinion with those of the writer. Hess v. Lowrey, 122 Ind. 568, 7 L.R.A. 90, 17 Am. St. Rep. 355, 23 N. E. 156; Fisher v. Southern P. R. Co. 89 Cal. 399, 26 Pac. 894, 9 Am. Neg. Cas. 104; Richmond & D. R. Co. v. Allison, 86 Ga. 145, 11 L.R.A. 43, 12 S. E.
In the case of Clukey v. Seattle Electric Co. 27 Wash. 70, 67 Pac. 379, the court said: “The sixth assignment embraced an objection to the manner in which the attorney for respondent conducted the cross-examination of the medical experts appointed by the court. The counsel asked the expert if such authorities did not lay down certain rules, — reading the language of the rule from the author s work, — and it is contended that it is an infraction of the rule of evidence against the admission of medical authorities. But we do not think the rule of law was announced to meet the practice of the kind complained of.
In the case of Brown v. Springfield Traction Co. 141 Mo. App. 382, 125 S. W. 236, the court said: “From the MacDonald Case,, as well as from authorities of other states, we glean the correct rule’ to be that an attorney may use a medical book to aid him in framing; questions to be asked of a physician testifying as an expert, but it is-not permissible to read from such books to the jury, and the court did not err in refusing permission to defendant’s counsel to read from such books to the jury in this ease.”
Again in the case of Louisville, N. A. & C. R. Co. v. Howell, 147 Ind. 266, 45 N. E. 584, we find the following: “Some contentions-made by appellant seem to be based upon a misapprehension of the facts, disclosed in the record. Objection, for example, is made to the exclusion of certain evidence sought to be elicited from Dr. Murphy, one of appellant’s witnesses. In the course of his re-examination this witness was asked by appellant’s counsel what was said in a certain named medical authority as to the difference between necrosis and caries of the bone, with a view to determine which of these diseases was indicated by the discharges from appellee’s wound; and counsel cited authority to show that on cross-examination, such questions are proper. There-is no doubt that, in order to test an expert’s knowledge, it is proper, on cross-examination, to read statements from writers of repute, who have treated of the subject concerning which the expert has testified,, and ask him questions touching the views advanced by such text-writers. Hess v. Lowrey, 122 Ind. 225, 7 L.R.A. 92, 17 Am. St. Rep. 355, 23 N. E. 156. The trouble with appellant’s contention is that the question here asked was not on cross-examination, and the evidence thus sought was but of a self-serving character.”
Again, in the case of Sale v. Eichberg, 105 Tenn. 333, 52 L.R.A.
The case at bar, then, comes within the permission, and not within the condemnation, of the decision. It is true that in his subsequent ■offer counsel asserted the right to use the books as evidence in them.selves, but this was only in a part of his offer, and he closed by saying: ■“And I also in this connection maintain that I am entitled, under the rules of legitimate cross-examination, to examine this witness thoroughly on that subject in the line that I have suggested to the court.” It is to be remembered, indeed, that he was interrupted as he was reading a statement from the work after the preparatory question, “Let’s see if you will agree with what I am going to read to you,” and though he seems in no way to have unnecessarily paraded the book, the court in answer to the question, “Then I understand, your Honor, it isn’t permissible to examine an expert witness as to whether or not he agrees with certain language that is laid down in a treatise,” answered, “Ton •can ask that, but you can’t read from the book.” Counsel for defendant then said: “Counsel for defendant desires to have the record show that he has no intention of offering the book in evidence; that his intention is to read from other like authorities, standard works on this .subject, certain hypothetical questions to be put to this witness as applied to the ease at bar, for the purpose of showing the jury that the child that is in controversy here was a full-grown normal child, and that under all the sound rules must have been begotten at a period of not less than 265 days and not to exceed 285 days, and that from the appearance of the child the witness is unable to state whether it was a 280-day child or a 265-day child.”
The door, indeed, seems to have been opened wide for cross-examination when on the direct examination of plaintiff’s witness, Hr. Chagnon, the witness was allowed to testify that "the medical authorities
When we come to the testimony of Dr. Vidal, and for the reasons-heretofore mentioned, we think the learned trial court committed no error. There was really no material difference in the two cases. Dr. Vidal had, it is true, on direct examination, referred to no particular authority, nor did he even on cross-examination agree with the authority read. He had, however, as in the case of Dr. Chagnon, based his opinion on the authorities generally, and it was merely proposed to examine him in regard thereto, and to read to him from them for that purpose. We now approve of the examination, not for the reason given in our original opinion, and of which we now entertain some doubt, but because the doctor had expressly stated that his opinion was based upon his readings and upon the authorities, and it was therefore perfectly permissible to show upon cross-examination that his. memory of what those authorities held was inaccurate, and to generally test the accuracy and extent of his reading and research.
It is true, there are some authorities which hold to a contrary rule to that which we have herein expressed. They are, however, few in number. Among them is the case of Mitchell v. Leech, 69 S. C. 413, 66 L.R.A. 723, 104 Am. St. Rep. 811, 48 S. E. 290. In this ease the court said: “The eleventh exception will next be considered. The record shows that the question arose in the following manner: ‘Doctor, is Lydson a standard medical work on genitourinary and venereal and sexual diseases? (Mr. Hart: I object. Medical books are not evidence, except in cases of insanity. Medical books are not evidence in cases of this character.) Q. I will ask him if that is good authority? (Mr. Hart: I object to that. Mr. Brice: This is an expert witness, and the witness had stated that the authorities, medical authorities — that is what the witness means — state that a man can have an injury so slight as not to be noticed at the time, and yet serious results follow. I am not introducing the authority. I am simply asking him whether this is an authority. The Court: The object of the question is to
Tbe case of Butler v. South Carolina & G. Extension R. Co. 130 N. C. 15, 40 S. E. 770, seems also to more or less bear out tbe point ■contended by tbe plaintiff. In it, however, there is no proof that tbe doctor in bis direct examination based bis opinion upon the authorities generally. Tbe same is true of tbe case of City of Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 678.
In tbe case of Chicago City R. Co. v. Douglas, 104 Ill. App. 41, tbe books were sought to be read on the examination in chief> and tbe case therefore is not in point. In tbe case of Hall v. Murdock, 114 Mich. 233, 72 N. W. 150, tbe books were actually read to tbe jury.
We, too, are not unmindful of tbe § 579 (595) of Jones on Evidence, on which tbe trial court based bis conclusions, and which states that “it is generally conceded, however, that where experts are examined as to questions of science they may give their opinions and tbe ground and reason therefor, although they state that such opinions are in some degree founded upon treatises on tbe subject. But it has been held inadmissible for such a witness to read to tbe jury from books, although be concurs in tbe views expressed, or even to state tbe contents of such books, though be may refer to them to refresh bis memory. . . . And when an expert has given an opinion and ■cited a treatise as bis authority, tbe book cited may be offered in evidence by tbe adverse party as impeaching testimony. But unless tbe book is referred to on cross-examination, it cannot be used for tbis purpose. It would be a mere evasion of tbe general rule under discussion, if counsel were allowed on cross-examination to read to tbe witness portions of such works, and to ask if be concurred in or differed from tbe opinions there expressed; hence this is not allowed.”
This section, no doubt, states tbe correct rule in regard to tbe examination in chief and rebuttal, and in regard to tbe actual reading of
The first case, namely, that of Marshall v. Brown, supra, is more or less in point, but a reading of it will, we believe, disclose a quite apparent desire to read the book to the jury, rather than to test the knowledge of the witness. In the case of People v. Millard, 53 Mich. 63, 18 N. W. 562, the point was not merely not a decisive one in the case, but the readings which were under discussion appear to have been had on the direct examination of the witness, and their purpose to have been to bolster up his testimony, rather than to test his learning. The language of the opinion is itself a strong argument for the liberal examination of experts and the testing of their knowledge and information. The court, indeed, expressly states that if the witness is not well read he is not entitled to any credence as m% expert, and yet the case is cited as authority for the proposition that the extent- and thoroughness of that reading may not be probed into. The court in its opinion, in fact, merely says: -‘Another source of error quite as mischievous, and which the court evidently desired to prevent, but did not always do so, was the introduction of what is no more than hearsay evidence, in the shape of references to writers and books in such a way as to invoke their authority. As we have had occasion on more than one record to explain heretofore, expert evidence is only admissible on the theory that the jury cannot be supposed to comprehend the significance of facts shown by other testimony which needs
In the case of Bloomington v. Shrock, the opinion expressly approves •of the case of Connecticut Mut. L. Ins. Co. v. Ellis, to which we have before referred, as an authority in support of the conclusions which we have herein arrived at, and differentiates the case under consideration by the Illinois case, from the case at bar, by the express statement that “in the present case, it has been seen, the course pursued was entirely different. The witness based no opinion which he gave, upon the authority of books, and they were only brought in to impair his evidence on cross-examination.” In the case of State v. Winter, 72 Iowa, 627, 34 N. W. 475, the question was asked and the book sought to be read on the direct examination of the witness, and the authority therefore is in no way applicable here, nor in any way supports the proposition contended for by Mr. Jones.
Indeed, while further treating on the subject of the cross-examination •of experts, Mr. Jones himself cites with approval the case of Hutchinson v. State, 19 Neb. 262, 27 N. W. 113, to which we have before referred, and announces a general rule which appears to be clearly in harmony with that opinion and with the present holding of this court. In § 389 (391) of his Commentaries on Evidence, he says: “Not the least important part of the cross-examination is that which sub
For tbe reasons herein stated, we are now of tbe opinion that tbe judgment of tbe District Court should be reversed, and that a new trial should be bad. It is so ordered.