On Petition for Rehearing.
Spaeding, Oh. J.Respondent has filed a petition for rehearing. It is a very carefully and ably prepared document, and sets forth very ■clearly counsel’s views regarding the questions decided in our original ■opinion. The writer does not ordinarily consider supplementary opinions on petitions for rehearing as of much value, but the importance ■of the questions involved in this case, and the apparent misapprehension of counsel as to the decision of the court as to some of them, or the failure of the court to make its meaning clear, leads him to reply to the most important points attempted to be made by counsel, in his *130effort to show that the court overlooked questions decisive of the case and duly submitted.
The first contention is that the court has entirely overlooked the nature of the question asked of Dr. Oyen, and erroneously assumes that it calls for hearsay testimony. A careful re-examination of the record leads us to the conclusion that counsel’s interpretation of the court’s opinion is too narrow. He assumes that we hold the question, “What diagnosis did you form, Doctor, in your examination of her ?” to be objectionable only in form. Such was not our intention. If his diagnosis had not been clearly shown to have rested in part at least upon an improper basis, the question would have been proper. But we are called upon to consider the foundation laid for this question. That foundation consisted in the testimony previously given by the doctor as to how he reached his conclusions, and the premises on which they rested. The objection covered this ground. The doctor had been examined in detail with reference to his examination of the plaintiff, from which examination, in all its parts, he formed his opinion called for in the question. His testimony regarding the method of examination was not incompetent. It was his conclusion derived from such examination that was incompetent, and hence appellant was not required to object to questions calling for a description, nor of his method of examination and the basis of his opinion. A proper objection to the final question calling for his opinion, and his conclusions from such examination, was all that was necessary. He testified as to the condition in which he found her by certain tests which he applied; that he formed a diagnosis on the strength of “what he found there, what he made her tell him, her answers to the inquiries propounded;” and that the usual way for a physician to form a diagnosis of a person who comes to him is from all symptoms found, and also from the history of the cases related by the patient; that he must base his conclusion on what he finds, and on what he observes, and on what the patient tells him. This is undoubtedly a correct method to aid in laying a foundation for the question, when the witness is a physician whose patient the plaintiff had been, and who had heard her history of the case to enable him to prescribe for her; but that is not this case, as we have above noted. The mistake of respondent consisted in pursuing the same method of examination that he would have followed had plaintiff *131been a patient of tbe witness, and tbe opinion founded upon information obtained in treatment. Dr. Oyen made no examination of the plaintiff for many months after tbe injury was inflicted. Iie.bad never been called to prescribe for ber, and did not examine ber for the purpose of prescribing, but solely to qualify him as a witness in ber behalf, and bis examinations were made on two days during tbe progress of tbe trial. We think tbe question objected to was clearly inadmissible, and all testimony under it incompetent.
Tbe second point respondent makes is that tbe doctor later testified to bis diagnosis, without objection. It is clear that this fact does not cure tbe error. Tbe question to which objection was made was comprehensive, and tbe objection covered all testimony given under that bead, even though in response to a repetition of that question or of other things which were necessary elements involved in that question, when propounded to tbe same witness, and particularly when not covered by tbe testimony of other witnesses of tbe same class; that is, experts. Every practising attorney knows that constantly interposing objections, and repeating them, and calling for a ruling of tbe court on the admission of answers to nearly every question, prejudices tbe jury against tbe party making tbe objections. Courts are not required to listen to and decide repetitions of tbe same objection when wholly unnecessary to protect tbe rights of a party. An objection properly interposed to a general question covers all subsequent questions on tbe same subject propounded to tbe same witness, and having for their object tbe eliciting of answers necessarily included in tbe answer to tbe main question. Subsequent objections are not required in a case like this. Tbe objection to tbe general question intended to bring forth tbe opinion of tbe witness as to tbe condition, etc., of tbe plaintiff was sufficient to cover ■ subsequent questions of tbe same nature, and to secure a review of tbe errors in tbe admission of testimony of like character from tbe same witness. This question has already been passed upon by this court in American Mortg. Co. v. Mouse River Live Stock Co. 10 N. D. 290, 86 N. W. 965, and tbe court said: “There was a general objection that said deed was incompetent, and to this was added tbe specific objection that no 'foundation’ had been laid, and that- it did not appear that E. M. Prouty bad any record title, or any title whatever. Defendant was chargeable with notice that when be offered a record of an original in*132strument in evidence, preliminary proof is needed as a foundation for such secondary evidence, and in this case the attention of defendant’s counsel was called to the fact that the proper foundation had not been laid.” And the court held that reiterated objections were unnecessary, as all of the evidence was of the same quality and class. See also Salt Lake City v. Smith, 43 C. C. A. 637, 104 Fed. 457, an opinion by the circuit court of appeals of this circuit. It is there said that: “The single exception which they took presented the entire question of the introduction of this hearsay testimony, and elicited a ruling of the court upon it which was conclusive and controlling at that trial of this case. There was no reason or call for further objections to evidence of this character, and their only effect would have been to annoy the court and to delay the trial. When a question has once been fairly presented to the trial court, argued, and decided, and an exception to the ruling has been recorded, it is neither desirable nor seemly for counsel to continually repeat their objections to the same-class of testimony, and their exceptions to the same ruling, which the court has advisedly made as a guide for the conduct of the trial.” See also Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131 ; Gilpin v. Gilpin, 12 Colo. 504, 21 Pac. 612 ; Whitney v. Traynor, 74 Wis. 289, 42 N. W. 267 ; Jones, Ev. § 894. The testimony of the doctor in the case at bar clearly shows that his opinion was founded upon not only his physical examination of the plaintiff during the progress of the trial, but upon her history of the case given him while he was making such examination. His evidence on this subject was not entirely cumulative, as he was the only physician who testified. Neither was it cured, as contended by respondent, by the introduction in evidence of prescriptions given by the doctor who had attended her after the injury, as they were of medicines which were suitable for ailments which might have arisen from one or more of many different causes, if such prescriptions were admissible at all. In this connection we may remark that counsel is also in error in his argument that we base our opinion upon a misunderstanding that the doctor testified that the assault and battery was the cause of the present condition of plaintiff. The language used in the opinion, if susceptible of such construction, was intended to mean the cause generally, and not specifically. Technically we suppose the meaning of the objectionable question in its use of *133the word “diagnosis” might be limited, but in the testimony preliminary to that question he had shown in what sense the word was used, and it comprehended, as used, all that our opinion states. He criticizes our citation of Atchison, T. & S. F. R. Co. v. Frazier, 27 Kan. 463, as an authority, because in that case the history of the case was told to the expert in the presence of the plaintiff by her husband. We are not able to distinguish between the principle announced in that case and the case at bar. Neither are we, as to the other cases, criticized in the petition. In each we think the principle announced is either fully or partially applicable to the instant case.
We think that we have herein covered all the questions raised in the petition that merit notice. We may, however, add that a large part of respondent’s original brief was devoted to the discussion of the sufficiency of the evidence to sustain the verdict, and the logic of counsel’s argument is that where there is evidence to sustain the verdict the judgment should not be reversed, regardless of the admission of incompetent and prejudicial evidence. The question of the sufficiency of the evidence was not in this appeal. It is true that in this case other witnesses testified to the injuries inflicted and the apparent results, but Dr. Oyen was the only physician who testified, and his testimony must necessarily have had great weight with the jury, and bore directly upon the measure of damages. It is nowhere claimed that it goes to the fact of the injury. As to that the evidence was in conflict, but, having found that the defendant injured the plaintiff, the jury had other duties to perform in reaching a verdict. It was necessary for it to find the amount of damages, and this finding would depend on the permanent effect of the injuries, the probability of a recovery, complete or partial, not simply the extent of the incapacity of the plaintiff to labor, according to her own opinion, but such incapacity, if any, as one competent to judge of its permanency and whether it came from natural causes or some unnatural cause, would testify to; and great care was, under the circumstances, incumbent upon counsel and the court to admit no incompetent evidence which might tend to magnify the damages, or to admit an expert opinion based upon any suspicion which might furnish an erroneous foundation. The petition for rehearing is denied.