I am unable to agree with the majority of the court regarding the proposition of law upon which the reversal of the judgment in the instant case is based.
When the defendant's counsel sought on cross-examination to elicit from the plaintiff testimony which was material to his client's defense it was incumbent upon him to frame the question in such a manner as to render it free from legal objection. This he did not do. The question was open to the obvious objection that it assumed as facts two things concerning which there was at the time it was propounded no evidence whatever, the facts assumed being that on June 9 a demand was served upon the witness's attorneys asking if he would submit to an examination by Doctors Craig, Van Poole and Harwell and that the demand was refused by witness's counsel.
The rule that such a question is improper has been so long established and so consistently adhered to by courts of last resort that it is no longer a subject of controversy. *Page 561 It is thus stated in 2 Nichols, Applied Evidence, p. 1989, § 24: "Questions assuming a fact or facts not proved in the case ought not to be asked and are improper." Many cases are cited in support of the text. In Tenny v. Mulvaney, 8 Ore. 513, 518, 519, where such a question was propounded to a witness and an objection on the ground that it was irrelevant and incompetent was overruled, the court said: "We do not think that a question which assumes as a fact that which is the object of a question to prove, is competent. To elicit competent evidence it must be by an appropriate question directed to the fact in controversy." It seems to have been the intention of the court to decide that even in a case where an objection to a question on the ground of incompetency is overruled and the question is answered and the action of the court on appeal is assigned as error, the ground upon which the objection was based, namely, incompetency, was sufficient to include the defect that the question assumed as a fact something about which there was no evidence and therefore should have been disallowed. If this is sound law, and I am inclined to think it is, the objection to the question now under consideration on the ground of incompetency was sufficiently specific to include the obvious defect that it contained an unwarranted assumption of facts and therefore there was no waiver of this defect.
Whatever criticism there may be of the rule laid down in the Oregon case, as it was there applied, and accepting defendant's contention that an objection to a question on the ground ofincompetency, like an objection on the grounds of irrelevancy and immateriality, is a general objection as contradistinguished from a specific objection, I am of the opinion that when the objection is sustained, as in the instant case, the trial court, on appeal, cannot be put in error if there is any legal imperfection appearing *Page 562 in the question itself. I think the law in this regard is very clearly stated in 1 Wigmore on Evidence (2 ed.) 184, where the author says: "But when a general objection is sustained by the trial court, it may be presumed that some valid ground was apparent to the judge without express statement; and as the exception is here to be taken by the proponent of the evidence, it is fair to insist that he should have asked for the specific ground of objection, if he did not perceive it; or should have made an offer to obviate it, if he did perceive it; or should have stated clearly the precise basis of his claim for admissibility, if he had rested on any specific ground. Hence, the general objection will suffice, if on the face of the evidence and the rest of the case there appears to be any ground of objection which might have been valid (or, otherwise stated, if there is any purpose for which the evidence would conceivably be inadmissible)." It is more succinctly stated as follows in 38 Cyc. 1386: "Where evidence is excluded on a general objection the action of the court will be sustained if any tenable objection to its admission in fact existed." In Mine Smelter Supply Co. v.Parke Lacy Co., 107 Fed. 881, 884, the court said: "Moreover, the objection that the question was `immaterial and improper' amounted to nothing more than a general objection; and the rule is well settled that, `when evidence is excluded upon a mere general objection, the ruling will be upheld, if any ground in fact existed for the exclusion. It will be assumed, in the absence of any request by the opposing party or the court to make the objection definite, that it was understood, and that the ruling was placed upon the right ground.'" In Tooley v.Bacon, 70 N.Y. 34, 37, the court said: "When evidence isexcluded upon a mere general objection, the ruling will be upheld, if any ground in fact existed for the exclusion. It will be assumed, in the absence of any request by the opposing party *Page 563 or the court to make the objection definite, that it was understood, and that the ruling was placed upon the right ground." Prouty L. B. Co. v. Cogan, 101 Ore. 382, 388, lays down the same rule. There the court said: "Again, it is said that a reason for the rule against general objections is that it is unfair to the trial court to make a general objection without particular specification of the grounds of the objection. But in good reason, if the trial judge is possessed of sufficient legal acumen to recognize the validity of the legal conclusion suggested by the general objection, he is at liberty to decide the point and exclude the evidence offered. If for his own information the adverse party requires a more specific objection, he should move for the necessary specifications. He cannot rightly speculate on the decision of the court and then complain that the objection is too general. It is quite as much his duty to be fair to the court as it is that of the other party. Moreover, if he would prevail on appeal, he must put his finger on the error complained of." Speaking on this subject the supreme court of Wisconsin (Rosenberg v. Sheahan, 148 Wis. 92, 95, 96) said: "Counsel cite many cases to show that the court below erred in rejecting the evidence because the objection thereto was not specific. The fact seems to have been overlooked that the cited cases are of trials where there was a general objection, the evidence was received, and it was held proper because of competency for a court to do so, the objection not being specific; and overlooked the companion rule that if, in face of a general objection, only, the court rejects the evidence the ruling will not be reversed on appeal if it appears that the evidence was objectionable upon any specific ground. There, it is to be presumed, the specific infirmity was the deciding factor, and it was competent for the trial court to take efficient notice thereof though it was not bound to do so. Pettit v. May, *Page 564 34 Wis. 666; Nicolai v. Davis, 91 Wis. 370, 64 N.W. 1001;Crawford v. Witherbee, 77 Wis. 419, 46 N.W. 545; Evans v.Sprague, 30 Wis. 303, and many similar cases which might be cited, are all instances where the evidence was received and it was held not error because the objection was general. True, it is the rule that where evidence is rejected under a general objection and a contrary ruling would have been called for upon a specific objection, and counsel making the offer requests the court to specify the particular ground for the adverse ruling for the purpose of obviating it, it is improper to refuse to do so;Colburn v. C., St. P., M. O.R. Co., 109 Wis. 377, 85 N.W. 354; but that is not this case, and is in harmony with the general rule stated. This is elementary: `The rule that the objection should be specific has no application, however, where a general objection is sustained; in that case the party against whom the ruling was made cannot urge that the objection was too general.' Jones, Ev. (2d ed.), § 894 (897); 8 Ency. Pl. Pr. 229; 1 Wigmore, Ev., § 18."
I know of no judicial precedent for a different rule. It seems the statement of a mere truism to say that if a party wishes to elicit from a witness material testimony he must do so by first propounding to the witness a question that conforms to legal rules. If he does not do this and his question, on objection, is disallowed he cannot complain that he was denied the benefit of the testimony he desired to present unless the infirmity of the question was waived.
I am unable to agree with the majority of the court that the failure of plaintiff's counsel to call attention to the obvious infirmity of the question propounded to the plaintiff was a waiver of its patent infirmity. Such a conclusion would place the burden solely on the one objecting to a question to point out specific objections, *Page 565 if there were any, and would relieve the one propounding the question from all obligation to reframe his question if he knew of its imperfection, or, if he did not perceive it, of asking opposing counsel to make his objection specific. So far as I know none of the cases or text writers sustain this view. On the contrary, according to the authorities I have cited, the rule seems to be the other way. The only obligation of the objector is to state any specific ground he may have if he is called upon by opposing counsel or the court to do so. If no such request is made of him he is under no duty to speak. There is nothing in the record to indicate that the objector to the question was requested by the court or the propounder of the question to make his objection specific. If this had been done and the objector had declined to speak, or speaking had disclaimed any intention to interpose a specific objection, I think he would now be estopped from asserting that there was one.
I am also unable to agree with the majority that the expressed wish of plaintiff's counsel that defendant's counsel would make an offer of proof was a waiver of the structural defect in the question. The transcript shows that the following occurred in this regard: "Q" (by Mr. Beebe, defendant's counsel) "Mr. Choy, on June the 9th a demand was served upon your attorneys asking if you would submit to an examination — Mr. Patterson: That is objected to. I wish counsel would make an offer of proof, if there is any more of this coming out. The Court: Finish your question, first. Q (Continued) — by the following named doctors: Dr. A.L. Craig, Dr. Van Poole, and Dr. Allan Harwell and was refused by your counsel. Was that with your consent?"
It will be observed that the statement of plaintiff's counsel regarding an offer of proof was made before the question was completed, and not until it was completed *Page 566 and the objection to it sustained was an offer of proof made. If the offer of proof had not been objected to and the fact which the defendant desired to establish had thus gone to the jury the plaintiff would obviously be in no position to now urge that the question propounded to the witness was objectionable on any ground. But under the circumstances as they appear in the above-quoted portion of the record I do not perceive any connection between the statement of plaintiff's counsel and a waiver of what I believe to be an imperfection in the question put to the plaintiff. Under the rule announced by the majority it would seem to follow that if a suggestion is made by counsel, when a question is only partly finished, that an offer of proof be made, such suggestion precludes him from thereafter objecting to the question when it is completed. What plaintiff's counsel said about an offer of proof was surely not sufficient to mislead defendant's counsel into believing that the question was free from objection, especially when an objection was made and acted upon at the conclusion of the question.
The colloquy between counsel, recited in the majority opinion, I think does not affect the situation now under consideration. The upshot of this colloquy was that counsel for plaintiff admitted that counsel for defendant had written a letter to him requesting that plaintiff permit certain doctors to examine him and it was admitted by counsel for defendant that in reply to this request plaintiff's counsel stated that the matter would be taken up in court. This was not the question propounded to the plaintiff on cross-examination nor were the facts, as they were disclosed by the colloquy, identical with those included in the defendant's offer of proof.
For the foregoing reasons I think the verdict of the jury should not be disturbed and the judgment of the circuit court should be sustained. *Page 567