Butler v. St. Louis Life Ins.

Rothrook, J.

I. Upon the trial the defendant admitted the execution of the policy for the use and benefit of plaintiffs, and the delivery of the same to Jacob Butler in his lifetime, and due notice and proof of the death, and the payment of all premiums due the company up to the date of the death of said Butler, and took the affirmative of the issues joined between the parties.

It appears from'the record before us that Jacob Butler was admitted as an insane patient in the Iowa Hospital for the insane, at Mount Pleasant, a short time before his death. It was conceded on the trial, by plaintiff, that he was legally and formally admitted as an insane person.

i. evidence: hearsay.’ The defendant introduced as a witness Mark Ranney, present superintendent of the hospital for the insane, at Mount Pleasant, who produced the admission papers, which defendant offered in evidence. Objection was made to the introduction of the questions and answers appended to the “physician’s return,” which was sustained, and defendant excepted and assigns this ruling as error.

We think the questions and answers referred to were properly excluded. Sec. 1100 of the Code provides that the physician “shall endeavor to obtain from the relations of the person in question, or from others who know the facts, correct answers so far as may be to the interrogatories * * *.”

The answers, then, are mere hearsay and not competent to show insanity at a previous date. Their introduction must have been sought for this purpose, for the plaintiff conceded that the deceased was insane at the date of his admission to the hospital at Mount Pleasant.

2 _. _. rmbiieSinstitution. II. The defendant sought to introduce the record of the Iowa hospital for the insane, so far as it related to the deceased. This was objected to and excluded. It appears that the records in question were in the hand-writing of an assistant physician. It is not shown *97 that the record was kept pursuant to any authority or by officers in the performance of any duty. A witness stated that the record was required by the by-laws, but such by-laws were not produced, and could not be proved by parol evidence. "What the .record contained which was material to the case we cannot determine, as no statement is made of its contents.

3. — :-: mraiess. III. Exceptions were taken to certain interrogatories propounded by plaintiff’s counsel to A. M. Hare, Rev. A. D.' Robbins, and to the plaintiff, as to the mental condition of the deceased. We are unable to

determine from the appellant’s abstract to what time these interrogatories referred or to what extent these witnesses were examined as to the facts upon which their opinions were based. There is an additional abstract in which it is claimed they were examined at length, showing a long and intimate acquaintance with deceased. Whether these witnesses narrated to the jury all the facts as to the conduct, appearance, health and conversation of the deceased, upon which they based their opinions, we cannot determine from the record. If they did, there was no error in permitting them to give an opinion founded on such facts. Pelamourges v. Clark, 9 Iowa, 1 ; The State v. Stickley, 41 Id., 232; Redfield on Wills, vol. 1, p. 137, et seq.

4 _. j_. expert. IV. There was evidence introduced which tended to prove that the deceased was insane in the year 1847, and that he was taken by his friends to the Ohio lunatic asylum, and that on June 29, 1847, he became an inmate and patient of said asylum and was therein treated for insanity. The plaintiff introduced one R. J. Patterson as a witness, who testified that he was first medical assistant in the Ohio insane asylum from 1842 to the close of 1847; that he remembered Jacob Butler well, and that he was not insane when in the Ohio asylum; that he was admitted informally, without the usual and legal examination or certificate,"and was there for physical treatment, owing to the fact that his father was an employe at the institution; that Butler was unrestrained, at liberty to come and go, and was not regarded as an insane patient. *98 After giving his opinion as to Butler’s sanity, based on his personal observation and treatment, in answer to certain questions propounded to him he stated that he had heard all the testimony that had been given in the case. Plaintiff’s counsel then propounded to said witness the following questions:

Int. I will put this question. In view of the testimony as you have heard it, and in connection with your own knowledge of the state of Mr. Butler at the time he 'was in the asylum in 1847, in your opinion, was he or not,- at that time, insane?”

Ans. “ That opinion I have already expressed — that he was not insane- — based upon my own personal knowledge.”

The Court: — “He is giving you a hypothetical case.”

Int. To the same as before. “ I want the opinion now, with your own individual observation, from what has reached you in the testimony?”

Ans. “The testimony has not served to induce me to change my opinion already expressed.”

These questions and answers were properly objected to by defendant. Objections overruled," and this action of the court is now assigned as error. It is not disputed that the witness was a medical expert. His opinion, based on his personal observation and treatment, was given without objection. Indeed, as it appears to us, he was a most important witness in the case. His learning, age and experience, entitled his opinion to great weight. We have each examined the question arising upon this assignment of error with care, and are forced to the conclusion that the ruling of the court was prejudicial error. The interrogatories to be put to an expert are not as to what his opinion is of the testimony, but what is his opin- ’ ion, if thq facts are as stated to him by the questioner.

Of course the hypothetical question thus stated should be based on the testimony. We might hold the ruling correct if the questions had been put conceding the testimony to be true, or in some way indicating that the witness was not left to give his opinion of the testimony. As it is, we are unable to determine from Mr. Patterson’s testimony whether he believed that the witnesses as to Butler’s insanity were mis *99 taken in what they observed, or whether he accepted the facts as proven and still was of opinion Butler was not insane in 1847. 1 Greenleaf on Ev., Sec. 440; Phillips v. Starr & Co., 26 Iowa, 349 ; The State v. Felter,.25 Id., 67.

As the judgment must be reversed for the error last above discussed, it is unnecessary that we should review the alleged errors based upon the instructions to the jury.

Reversed.