Conway v. Monidah Trust

MR. JUSTICE SANNER

delivered the opinion of the court.

This is the second appearance of this cause in this court, and a sufficient statement of the issues will be found in Conway v. *116 Monidah Trust, 47 Mont. 269 , 132 Pac. 26 . The former appeal was after trial upon the merits, and the questions presented involved the sufficiency of the complaint, the sufficiency of the evidence, rulings upon evidence, and certain instructions [1] to the jury. The matters then considered and determined are, of course, the law of the case, and, to such of them as the present appeal seeks to again present, attention will not be paid further than to say that they are: The refusal of the court to subject the plaintiff to a physical examination by defendants’ experts, the submission to the jury of loss of earning capacity as an element of damage, and the sufficiency of the evidence to show with reasonable certainty the extent of the injuries sustained. Touching the last-mentioned matter, the showing made by the plaintiff is substantially the same as made upon the first trial, which, after full consideration, we pronounced sufficient; and, while it is true that the volume of testimony presented by the defendants has been somewhat augmented, its legal effect is still the same, viz., to create a conflict which it was the province of 'the jury to resolve.

By assignments numbered I to X, complaint is made of [2] undue restriction imposed by the court upon the defendants in the cross-examination of plaintiff’s witness Dr. McCarthy, Dr. McCarthy, it is said, was called as a medical expert; and as expertism has become so cheapened, and the frailties of such testimony have become so notorious, the utmost latitude should be allowed in the cross-examination of persons testifying as experts, in order that their actual qualifications may be ascertained. We may concede the premises without being required to abandon all the rules of procedure designed to prevent collateral matters from obscuring the true issues upon the trial. The opportunity to cross-examine the witnesses of the opposing party is a matter of right, but the latitude of such examination is very largely in the discretion of the trial court, with which this court will not interfere, save in case of a manifest abuse. (Forester & MacGinniss v. Boston & Mont. etc. Mining Co., 29 Mont. 397 , 74 Pac. 1088 , 76 Pac. 211 ; State v. Biggs, *117 45 Mont. 400 , 123 Pac. 410 .) In some of the instances complained of, the inquiries were not proper cross-examination; in others, the information sought either had been, or thereafter was, elicited; and in none does it appear that prejudice was suffered. No abuse of discretion is exhibited by the errors assigned in this connection.

2. Under the head “Irregularities Committed by the Court,” [3] and embracing the subject matter of assignments XI and XIII, as well as others, the defendants complain of certain remarks made by the trial judge and of the peremptory stoppage of the cross-examination of Dr. McCarthy. If there was any error here, it is not available. No request was made to have the jury directed to disregard the remarks in question, but the jury were in effect so instructed. Presumably this was sufficient. (State v. Bloor, 20 Mont. 574 , 52 Pac. 611 .) The ruling by which the cross-examination of Dr. McCarthy was stopped, [4] whether justified or not, was later relaxed to a degree amply sufficient for all proper purposes.

3. Dr. Freund, a witness for the defendants, having testified [5] that an injury does not necessarily follow from a fall, and that he had himself suffered a fall which left a mark upon his head resembling a fracture of the skull, but from which no serious consequences ensued, was asked to show the mark to the jury, but this the court, upon objection, declined to permit. (Assignment No. XII.) It is urged that, the process of nature being uniform, this was relevant to show that the plaintiff, upon whose skull it was contended there were no marks, had not been seriously hurt by his fall. Nothing is more certain than the uniformity of nature, under conditions exactly alike, and nothing is more deceptive than apparent similarities; hence, in every case of reasoning by homology, the identity of the essential conditions must be established when it cannot be assumed. As every condition which might in any wise tend to make Dr. Freund’s experience resemble, or to differentiate it from, that of plaintiff, was wholly omitted, we are satisfied no error was committed in this ruling.

*118 4. One of the grounds of motion for new trial now [6] vigorously pressed upon us is “excessive damages, appearing to have been given under the influence of passion or prejudice.” The amount awarded by the jury ($15,000) can be justified only by the assumption that the plaintiff will have no earning capacity whatever after he reaches the age of majority. But this, if unwarranted, does not necessarily evince passion and prejudice; it is rather a miscalculation, the result of which is subject to correction, under the principles announced in Chenoweth v. Great Northern Ry. Co., 50 Mont. 481 , 148 Pac. 330 . At the time plaintiff fell into the unguarded shaft he was seven years old, and that he sustained some injury in consequence of his fall is not and cannot be disputed. There is evidence to show that the injury is serious, probably permanent, possibly progressive. From present indications it will handicap him and diminish his earning capacity to some extent after he reaches his majority; but that the result will be a total loss of earning power there is not, in our judgment, any sound basis in the record for saying. This being so, we think that $10,000 will afford ample compensation for such injuries as the evidence establishes with reasonable certainty.

The cause is therefore remanded to the district court of Silver Bow county, with directions to grant a new trial, unless within thirty days after the remittitur is filed, the plaintiff consent in writing that the judgment may be reduced to $10,000. If such consent be given, the judgment will be modified accordingly, and the order denying a new trial and the judgment, as modified, will then stand affirmed. Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.