Warner v. Packer

The defendants testified in detail as to their professional conduct. The testimony of the plaintiff was contradictory, but not contrary to that of the defendants. She testified that an examination was made,' but her version varies radically from the versions of the defendants, and upon rebuttal she contradicted certain features thereof described by the defendants. Her contradictions were directed to many of her statements testified to by the defendants which to the lay mind would indicate her abnormal mental condition. As the question of veracity was for the jury, the plaintiff, when we consider the correctness of the verdict, is entitled to have her version accepted by us rather than that of the defendants. She testified upon her direct examination that the defendants were introduced to her as nerve specialists, of whom one asked her a few questions and the other did not speak; that they were with her about 15 minutes; that they asked her one or two questions about her general health, and drew from her some facts in relation to her recent experiences with her husband; that they took no notes; that they asked her whether she had ever thought of ending her life, recurring to that question two or three times; and that there was something said about readers which she was making. The reference to the readers is explained by the fact that the plaintiff was the author of several text-books used in schools.

The version of the defendants, revised by exclusion of the parts thereof contradicted by the plaintiff on rebuttal, is as follows: The

“Mr. Warner said he feared he would have to send Mrs. Warner to a sanitarium ; that for three or four years she had been acting strangely, and that for two or three years they had a great deal of trouble; that there was nothing he could do to please her, that she attacked him, had threatened him, and has also threatened to injure herself, and he said he did not want to do it. He said she was sick, that the city life disagreed with her, and they finally purchased a place in the country. He said she was nervous and ill, and he took her to the country, and that they bought this country home hoping that she would recuperate. He said she worked out of doors in the hot sun. carrying these stones and trundling a barrow and exposed herself, and it injured her health, and that he could not control her- in this, and he said when be went home at night that she would attack him, and that she left notes around the house for him instead of speaking to him, and that those notes were in the form of agreements which he had to sign, and which were utterly ridiculous, but he had to sign them—he said that he had to sign those, and he said that they had so much trouble over the expense of the house and the expense of the two, that it was' agreed they would divide all the expenses, and that it was extremely humiliating to him, because he had to divide the car fare even, and he spoke of those things as showing her state of mind, and he wanted to know what I thought. He asked me for an opinion. * * * He also said that she would scream and scream until it had disturbed the neighbors, and they had finally had to let their house, or their rooms, or whatever it was. He gave me the facts which are asked for on the fourth page of the certificate, after the- article requiring her age, condition, and so forth, which is just prior to the affidavit. * * * I did not know Mr. Warner before this day. I next saw Mr. Warner a few days after that —four or five days after; then he came the second time in regard to the case. I did have a further conversation with him with reference to his wife’s case. I had a further conversation with him, and got those facts on the fourth page of the certificate at the time of the first visit; it was at the time of the second visit. At the time of the second visit he said he had decided; at the time of the second visit he asked me to examine Mrs. Warner, and we went over many of the facts as enumerated' above. After this conversation .1 proceeded to New City.”

Dr. Wilgus testified:

“I did have a conversation with Mr. Warner in reference to his wife’s case on the occasion of this trip to New City, on July 13, 1904. Mr. Warner said that he told me on the train that he and Mrs. Warner had known each other for a number of years, and that they had been married, for I think, about 10 years—I will say that roughly, I don’t remember the exact length of time; that they had lived a very happy life, and were apparently congenial until about 1900. Mr. Warner said that they had gotten along very well until .about 1900, and between 1900 and this time in 1904 Mrs. Warner had threatened to commit suicide; that she had' assaulted him; that she had made him sign very unusual agreements, including much that he considered nonsensical ; that she had made him agree to share half the expenses of the house account with her; that she accused him of being a thief, and of having designs on her property and even on her life; that in order to benefit her health they had agreed to purchase that place at Dellview, and that she had gone out there in the attempt to recuperate; that things had progressed no better from the time that she had gone to Dellview, and in fact that his wife had become even more exacting, and that be felt that for her good, something ought to be done for her welfare.”

Some of the statements of the husband as testified to by Dr. Wilgus are corroborated by the writings of the plaintiff read in evidence.

A striking feature in the plaintiff’s case is the omission of any scientific or expert evidence as to the course pursued by the defendants in the examination, as to whát was done that the average examiner in lunacy would not have done, or as to what was not done which such an examiner would have done under the circumstances of the.

“In brief, the task of a physician when he examines a patient for certification is to make a diagnosis. If, for any reason, he is not able to make a diagnosis, he should not sign the certificate. The whole art of diagnosis may be involved in the case, and there is no rule for it except to have a reliable knowledge of insanity.”

It seems to me that the very nature of the subject—the question of negligence in a diagnosis—would almost preclude a jury from passing upon it by their common knowledge unaided by any scientific or expert information whatever, or by the testimony of any witnesses of special knowledge and skill. Yet there is not in evidence any standard for comparison of the conduct of the defendants with that which was required of them. In Van Wycklen v. City of Brooklyn, 118 N. Y. at page 429, 24 N. E. at page 180, the court, per Brown, J., say:

“While it is no longer a valid objection to the expression of an opinion by a witness, that it is upon the precise question which the jury are to determine (Transportation Line v. Hope, 95 U. S. 297 [ 24 L. Ed. 477 ]; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42 ; Cornish v. F. B. F. Ins. Co., 74 N. Y. 296 ), evidence of that character is only allowed when, from the nature of the case, the facts cannot he stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable. (Ferguson v. Hubbell, 97 N. Y. 507 [ 49 Am. Rep. 544 ]; Schwander v. Birge, 40 Hun, 66 ; Greenl. on Ev. vol. 1, § 440, and note.) Familiar examples of the admission of evidence of this character are cases involving questions of medical practice and skill, and cases involving genuineness of handwriting.”

See, too, Dougherty v. Milliken, 163 N. Y. at page 533, 57 N. E. 757 , 79 Am. St. Rep. 608 ; Northern Pacific Railroad v. Urlin, 158 U. S. at page 273, 15 Sup. Ct. 840 , 39 L. Ed. 977 ; Rogers on Expert Testimony, p. 148; Thompson on Negligence, § 8848 et seq.; Link v. Sheldon, 136 N. Y. 1 -10, 32 N. E. 696 ; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612 , 4 Sup. Ct. 533 , 28 L. Ed. 536 . In Wood v. Wyeth, 106 App. Div. 21 , 94 N. Y. Supp. 360 , this court, per Bartlett, J., indicated the importance of such testimony as is lacking in this case, and said:

• “I have been unable to find enough in the proof offered by the plaintiff to justify a finding that there was any lack of professional intelligence, skill, or care on the part of the respondent, either in deciding to perform the operation, or in its performance, including the administration of the chloroform. The plaintiff sought to establish such negligence by the testimony of a medical expert, Dr. Harry Enton of Brooklyn; but neither in answer to hypothetical questions, nor in any other part of his testimony, does he really express the opinion that what is shown to have been done by Dr. Wyeth was contrary to the best or established practice of qualified surgeons in the "treatment of such a case under similar circumstances.”

Nor do I think that any negligence can be imputed in this case to the omission to make further inquiries, although it is recognized in a

“July 13, 1904. I got another interpretation of the Brook yesterday when I went to it for solace and rest. I fear it will never sooth me again as it has done. I found myself saying to it, ‘You are insensate, following your own bent, your own idle pleasure, your own aims regardless of what good or ill you do. You have no feeling for the arched beauty of rock and forest that bends protectingly above you. You would undermine it and find your way through its ruins or about them and laugh on as unconcernedly as ever. You would drown out the wonderful life of a human being in any of your pools as willingly as you would a rat, and then ripple on, whispering with your fairy voices as if you had sweet secrets to tell. You are the highest of all types of smiling, wooing ruthlessness. Your name is Ellsworth Warner.’ Dear Auntie: This is sent you though not written for you on the eve of my departure, in a close carriage, for parts unknown. Yours affectionately, Nellie.”

There is ground for surmise that the jury found negligence from the premise that the plaintiff was sane at the time the defendants certified that she was insane, for the minutes show that they “returned their verdict in which they find that Mrs. Warner was, on the 13th day of July, sane and rational and find doctors guilty of negligence and fix the damages at $25,000.” The finding of sanity was no more a

I advise that the judgment and order be reversed, and that a new trial be granted; costs to abide the event. All concur.