The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-02-20
DECISION OF THE
SUPREME COURT

State of North Dakota in Supreme
Court, October 1912 Term, Maria
Hintz. plaintiff and respondent, We.
Conrad Wagner, defendant and APP
pellant.
/. Testimony of experts is admis-
sible in many cases because the u b
ject of the litigation relates to or in
wolves matters on which people in
general are incompetent to form or
offer opinions, and because the expert
las made a special study Of the sub
ject.
2. AS a general, though not in
flexible rule, a medical expert who has
never treated an injured party and
only makes an examination nan
months after the injury was inflicted,
and then solely for the purpose Of
Qualifying him as an expert witness,
may not give his opinion as to the
cause of the present condition of the
party, the extent and effect OF the in
jurieS, and their duration, when such
opinion is based largely upon a history
Of the case given by the injured party
TO the expert for the purpose of
qualifying him as an expert witness.
8. This action is for injuries oc-
casioned 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 progress of the trial,
about eighteen months after the in
Fiction Of the injury, solely for the
purpose of qualifying him as an ex-
pert witness. There were no outward
evidences of the injury, and he testi-
fed that he formed his diagnosis o
the strength of what he found, what
he made her tell him, her answers to
his inquiries, what she said about the
changes from time to time in the past,
and her history of her condition dur
ing the time between the litigation
and the trial. Held, that under the
circumstance of this case, and such
opinion being largely based upon hear
say n statements made out of court
not under oath, and when every
temptation n opportunity existed
for eXaggeratiOH and misrepresenta-
ton. such evidence was incompetent
and its admission highly prejudicial
to the defendant.
4. Testimony of a medical expert
hould in general be confined to the
result Of his actual Investigations. and
when he has never been called to at
ten or prescribe for the party should
be limited to the conditions he hnds
on the examination, and to his opinion
based thereon.
s. Testimony of a medical expert
that the plaintiff, whom he examined
to qualify him as a witness. could not
deceive him is to her condition, was
improperly received for the reason
that that question was for the jury.
b. Evidence was admitted thai
plaintiff has been unable to perform
her household duties since the infic-
ton OF the injury, and hat it became
necessary for a young daughter to
aid her in doing her homework. No
ein value was fixed on the serv-
ices of such daughter and the condi-
ton of the evidence on the subject
rendered it possible for the jury to in
clude the value of her services in the
verdict. Held lat ii was error to
admit such evidence as a basis for
damages.
T. 1t was error to permit the medi-
cal expert to give testimony in the
nature Of an to the Jury i'm
favor Of the plaintiff.
s. The error in admitting the testi-
mony Of the medical expert, based
upon the history of the case. etc.
given by plaintiff in his case. was
not cured by other evidence on the
same subject.
9. A reversal on technical error is
a reversal on error not going to the
SuDSIaISe VI the issues or TO the sub
stantial rights Of a party.
10. In the case the testimony of
the expert to some extent went to the
fact OF the injury but very largely to
the amount of recovery, and this
court cannot determine that, and
such incompetent evidence been ex-
cluded, the jury would have arrived
at the verdict which it found. Such
error was, therefore, not a technical
error but went to one Of the vital
elements of the issues.
IL. Every person is entitled to a
legal trial, and, in a jury case, to a
verdict which has been reached by a
fair submission OF the evidence and
the law of the case to the jury, and
when this has not been done this court
cannot say that justice has been done,
but must hold that the verdict has
reached by illegal means.
IL. In answer to respondents con-
tention that the errors presented I'm
this record are only technically errors,
n his request that the court follow
certain provisions Of the 1907 English
criminal appeal acr, and OF a bill re-
Gently passed by the national house of
representatives, attention is called 10
the fact that they are but expressions
of the policy Of the law Of this state
n of this court for many years.
(Syllabus by the court.)
Appeal from a judgment and order
of the district court of Wells county,
Burke, and Coffey, J. j.
Opinion by Spalding, G. j.
Reversed.
John o. Hanchett. Harvey, for APP
pellant.
Bessesen & Berry, Harvey. for re-
%spondent.