In passing upon the *Page 379 validity of the claim that errors occurred in the trial of this case, I do not overlook the fact that it is conceded that there is abundant evidence to sustain the verdict for the defendant. I also remember that there is a presumption in favor of the validity and regularity of the proceedings of the trial court and that we have no right to disturb its judgment unless substantial error, to the prejudice of the appellant, appears in the record.
(1) The first error assigned is in the giving of a special charge. This charge was:
"The court charges you that the defendant, by reason of his contract with plaintiff, did not guarantee a cure, nor did he warrant that the operation would be successful, nor did he undertake that nothing serious would arise as a result of his treatment."
The defendant requested the court to give a series of special charges before argument, of which this was one. The court gave five.
Now in determining whether this charge stated an incorrect rule, and, if so, whether it was prejudicial, it must be considered in conjunction with the other special charges which supplement and explain it. Wymer-Harris Construction Co. v.Glass, Admx., 122 Ohio St. 398, 171 N.E. 857, 69 A.L.R., 517.
It is our judgment that when this special charge is read in conjunction with special charge No. 3, no implication, prejudicial to the plaintiff, can be drawn from it. Special charge No. 3 is:
"The court charges you that the duty imposed upon the defendant was that in the operation and treatment he should exercise the ordinary degree of skill, care and diligence exercised by surgeons, under the same or similar circumstances, practicing in this community or similar localities, in the light of modern advancement and learning on the subject."
Reading them together, as we should, and as the jury undoubtedly did, it is seen that the court stated what *Page 380 the defendant was not bound to do and what he was bound to do, and in each instance stated it correctly.
We find no error in the giving of these special charges.
(2) Complaint is made because of the giving of this special charge:
"The court charges you that the plaintiff must prove by a preponderance of the evidence that the defendant injected alcohol into the plaintiff during this bilateral vein ligation operation."
It will be observed that while the charge is in the imperative form, there is no statement as to the effect of a failure to comply with the command. There is no statement that upon a failure to prove that defendant injected alcohol, a verdict should be returned for the defendant.
Now, the plaintiff having alleged it, the burden of proving it by the preponderance of the evidence was upon him. A charge stating that and nothing else would have stated the correct rule on the burden of proof. Isn't this charge synonomous? Surely, we are justified in assuming that the jury would construe this charge as having relation to the issues in this case and not as given at large. Of course, no one would understand that the intent was that the plaintiff was under an absolute compulsion to prove the allegation. In its setting, lawyer and layman alike would understand that it meant that, having alleged it, plaintiff must prove it by the degree stated, otherwise his rights should be determined as though he had not alleged it.
That no prejudice could have resulted from failure to state the effect of lack of proof is made manifest when we look to the general charge in which it was clearly stated that the plaintiff would be entitled to recover if he proved any one of the acts of negligence alleged. Looking to the general charge for this purpose is not an attempt to correct an incorrect special charge by stating the opposite correct rule in the general *Page 381 charge — which, of course, cannot be done. It is interpreting a special charge in the light of all the circumstances, and so interpreting it, finding it to state a correct rule. Makranczy v.Gelfand, Admr., 109 Ohio St. 325, 142 N.E. 688.
I find no error in the giving of this charge.
(3) It is urged that the court erred in sustaining an objection to questions asked on cross-examination of one of the defendant's witnesses. We quote this part of the record:
"Q. When Dr. Roof spoke to you about this on September the 14th, 1937, did he ask you then whether or not you had placed alcohol in the container in which the novocaine should have been?
"Mr. Schneider: Objection.
"Mr. Brumleve: This is a conversation with Dr. Roof.
"The Court: It seems to me that this might be a proper question in the examination in chief if you were calling this witness as to a self-serving declaration, but at this time on cross-examination I do not understand it is proper.
"Mr. Brumleve: I don't think that is a self-serving declaration, if you Honor please. It is a declaration against interest.
"The Court: I used the wrong expression, I meant a declaration against interest.
"Mr. Brumleve: I have a right on cross-examination to bring out any conversations which she had with the defendant in this case about these things.
"The Court: It seems to me that is making the witness your own witness.
"Mr. Brumleve: Well of course, your Honor presides and rules, of course I don't think it does. This is a witness who is brought here for the defense against the plaintiff's case. I have a right to examine this witness as to any conversation that she had with Dr. Roof concerning this case. *Page 382
"Mr. Schneider: Your Honor limited me rather strictly it seems to just on the same ground.
"Mr. Brumleve: It was on an entirely different ground.
"Mr. Schneider: That is what you think.
"The Court: I am going to sustain the objection at this time. If you want to call this witness as your witness —
"Mr. Brumleve: Why if your Honor please, I wouldn't call a hostile witness as my witness.
"Mr. Schneider: I object to a statement like that.
"The Court: I will sustain the objection. You will have the opportunity to call the witness.
"Mr. Schneider: And move the jury be instructed to disregard that last remark of counsel.
"The Court: The jury has been instructed several times in this case on the matter of comments.
"Q. I will ask you what did Dr. Roof say to you when he asked you about that operation on September 14, 1937?
"Mr. Schneider: Objection.
"The Court: The same ruling.
"Q. I will put another question, and don't answer until there is an opportunity for objection. Did Dr. Roof at the time when he communicated with you, ask you if you were sure that alcohol was not furnished to him for the purpose of the injection into the veins?
"Mr. Schneider: Objection.
"The Court: I will sustain the objection.
"Mr. Brumleve: May I have an exception?
"The Court: For the same reason that the court has indicated."
It will be observed that the court sustained the objection, because the subject had not been referred to in the direct examination. This was a wrong reason. Cross-examination is not limited to that which formed the subject of the direct examination. A witness may be questioned on cross-examination about any subject *Page 383 concerning which he might have been questioned on direct examination, limited only by the rule that a defendant may not develop an affirmative defense on cross-examination of the plaintiff's witness. Legg v. Drake, 1 Ohio St. 286; Smith v.State, 125 Ohio St. 137, 180 N.E. 695.
On cross-examination of the defendant's witness the plaintiff may inquire for the purpose of endeavoring to develop any admissions against interest by the defendant or any previous statement made by the witness inconsistent with his testimony. Cross-examination is necessarily exploratory and a wide latitude should be permitted. While the extent of cross-examination upon a particular phase is within the sound discretion of the trial court, which will not be disturbed by an appellate court in the absence of a clear abuse, nevertheless, a refusal to permit any inquiry at all upon a relevant subject is reversible error. District of Columbia v. Clawans, 300 U.S. 617, 81 L. Ed., 843,57 S. Ct., 660.
In Alford v. United States, 282 U.S. 687, 75 L. Ed., 624,51 S. Ct., 218, the court held that:
"The ruling of the trial court, cutting off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination, was an abuse of discretion and prejudicial error."
It will be seen that at this trial, the court stopped the cross-examination at the very threshold of the inquiry and refused to permit any inquiry on this subject on cross-examination. It is manifest that the cross-examiner was seeking to explore and develop the nature of a conversation between the defendant and this witness relating to the operation which was the basis of this malpractice action. It was relevant and may have developed evidence of material value to the plaintiff. The prejudice was not cured by the suggestion that the plaintiff call the witness in rebuttal as his witness. *Page 384
(4) The court permitted certain physicians to give their opinions in answer to hypothetical questions and this is assigned as error. It will be seen from the quotation in Judge Ross' opinion that the question was abstract, not purporting to relate specifically to what the defendant did in operating upon the plaintiff. The answer was: "I do not believe under those circumstances he failed to do anything that he might have done for the benefit of this patient, more than what he did do."
It is objected that this question and answer related to the ultimate issue and permitted the expert to state his opinion on that ultimate issue. That is not true. All the witnesses did was express their opinion as to whether the data stated in the hypothesis conformed to the accepted standards of due care. Certainly, this is not the precise ultimate issue in this case.
In my opinion no error was committed in this respect justifying a reversal of this judgment.
It is true that in Mitchell v. Industrial Commission, 135 Ohio St. 110, 19 N.E.2d 769, and other cases, the Supreme Court has stated that opinion evidence on the precise ultimate issue is inadmissible, but those cases are distinguishable upon their facts. In an annotation in 78 A.L.R., 755, this subject is discussed, and the lack of reason for the distinction between evidentiary and ultimate facts pointed out.
I concur in the reversal on the sole ground that the court erred in limiting the cross-examination. *Page 385