Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-02-20
Supreme Court

State of North Dakota, in Supreme
Court, October, 1872, term.
Maria Hintz, plaintiff and respondent.
vs.. Conrad Wagner, defendant and appel
liant.
/. Testimony of experts is admissible
in many cases because the subject of the
litigation relates to or involves matters
on which people in general are incom-
petent to form or offer opinions, n be-
cause the expert has made a special
study of the subject. #
2. AS a general, though not %inteXible
rule, a medical expert who has never
treated an injured party and only makes
an examination many months after the
injury was inflicted, and then solely for
the purpose of qualifying him as an ex-
pert witness, may not give his opinion as
to the cause of the present condition
of the party, the extent and effect of the
injuries, and their duration, when. such
opinion is. based largely upon the, history
of the case given by the injured party
to the expert for the purpose of qualify
ing him as an expert witness.
3. This action is for injuries OCCASION
ed by an assault alleged to have been
committed by defendant upon plaintiff.
The only expert testimony was given by
a physician who had never been called
to attend plaintiff or prescribe for her,
but who examined her during the prog
ress of the trial, about Is months after
the inniction Of the injury, solely for the
purpose of qualifying him as an expert
witness There We're no outward evil
dences Of the injury, ard he testified that
he formed his diagnosis upon the
strength of what he found, what he made
her tell him, her answers to his inquir-
les, what she said about the changes
from time to time in the past, and her
history of her condition during the time
between the litigation and the trial.
Held, that under the circumstances of
this case, and such opinion being largely
based upon hearsay and statements made
out of court, not under oath, and when
every temptation and opportunity exist
ed for exaggeration and misrepresenta-
ton, such evidence was incompetent and
its admission highly prejudicial to the
defendant.
4. Testimony of a medical expert
should in general be confined to the re-
cult Of his actual Investigations, n
when he has never been called to at
tend\Qr prescribe for the party should
be limited to the conditions he finds on
the examination, and to, his opinion based
thereon.
5. Testimony of a. medical expert that
the plaintiff, whom he examined to quail
ify him as a witness, could not deceive
him as to her condition, was improperly
received for the reason that that ques-
ton was for the jury.
6. Evidence was admitted that plain
tiff had been unable to perform her
household duties since the infection of
the injury, and that it became neces-
sary for a young daughter to aid her in
doing her Homework. No definite value
was fixed on the services of such daugh-
ter and the condition of the evidence on
the subject rendered it impossible for
the juryFto include the value of her serv-
ices in the verdict. Held, that it was
error to Sadmit such evidence as a basis
for damages.
Z. 1t was error to permit the medical
expert to give testimony in the nature of
an argument to the jury in favor of the
plaintiff.
8. The, error in admitting the testi-