The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1913-02-21
given by a physician who had

was given by a physician who had
never been called to attend plaintiff
or prescribe for her but who examined
her during tho progress Of the trial.
about Ii months after the infection
Of the injury, solely for the purpose
or qualifying him as an expert wit.
ness. There were no outward evi.
dences OF the injury. and he testified
that he. formed his diagnosis upon the
strength Of what he found, what he
made her tell him, her answers to his
inquirtes, 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 Cir
cumstances Of this case. and such
opinion being largely based upon
hearssy and statements made out Of
court. not under oath. and when every
temptation and opportunity existed for
exagseration and misrepresentation,
s9cn evidence was incompetent and its
admtssion highly prejudicial to the de-
PENDANT.
4. Testimony Of a medical expert
should in general be confined to the
result of his actual investigations. and
when he has never been called to at
tend or prescribe for the party should
be limited to the conditions he finds
on the examination, and to his opin.
ion based thereon.
B. Testimony of a medical expert
that the plaintiff, whom he examined
to qualify him ~ q witness, could not
deceive him as to her condition. was
improperly received for the reason
that that question was for the Jury.
o: evidence was admitted that
plaintiff had been unable to perform
ner household duties since the inflic-
aon VI the injury. and that 1t became
her in doing her housswork. No
enn value was fixed on the services
o1 such daughter and the condition
OF the evidence on the subject render.
ca 1t possible for the jury to include
the value OF her services in the yer.
dict. Held that It was error to admit
such evidence ali q basis for damages.
!. 1t was error to permit the medi-
cal expert to give testimony in the ma
vor Of the plaintiff.
mony OF the medical expert, based up-
on the history Of the case. ETC.. eiyen
py plaintiff In this case. was not cured
oy other evidence on the same subiect-
y. a reversal on technical error 10
q reversal on error not going to the
substance Of the issues or to the sub
stantial rights of a party.
10. In this Ease the testimony Of
the expert to some extent went Ia the
TACT OF the injury but very LARGELY to
the amount Of recovery, and this court
cannot determine that, had such IN.
competent evidence been excluded. the
Jury would have arrived at the verdict
which 1t found. Such error Wax. there.
fore. not q technical error but want
to one OF the vital elements 81 the is.
sues.
II. Every person 10 entitled. IA a
legal trial. and. In a Jury Gaze. "a a
verdict which has been reacheS hv a
fair submission OF the evidence ana
inc law OF the case to the jury. and
lei this has not been done this court
cannot = that justice has been done.
put must hold that tho verdict mas
been reached by illegal means,
~. In answer to respondents con.
tention that the errors presented in
this record are only technically
and his request that the court follow
certain provisions Of the 1907 Eng
iish criminal appeal act. ana Of q bin
recently passed by the national house
OF representatives. attention is called
to the fact that they are but express
sions OF the policy Of the law Of this
state and Of this court for many YEAR.
lSylIabus by the court.)
Appeal from a judgment and order
OF = district court Of Wells county.
Burke and Coffey. ]. J.
Opinion by Spalding, G. J.
Reversed.