A motion for reargument has been made in this case, in the language of the brief in support of it, "chiefly on the ground that no objection was made below upon the ground that Dr. Baum was not qualified as an expert to answer the question," contained in the second bill of exceptions, "and that his qualification as an expert was therefore not open for review in this Court." As that point was not made at the oral argument or in the brief, but on the contrary the admissibility of the question was discussed, our attention was not directed to it and hence we did not refer to it in the original opinion. But without meaning to intimate that the rule which has been adopted in some jurisdictions should have the wide scope given it which is contended for by the appellee, even if it be conceded to be a general rule it cannot be applied in this case.
We recognized Dr. Baum as a medical expert in passing on several of the exceptions, and have no doubt as to his competency to testify as such, but that did not authorize him either to make conjectures or to express an opinion on a subject which required information that he confesedly did not have. The case, as tried below, depended largely upon whether the plaintiff had received an electric shock by coming in contact with a live wire, or whether her condition was the result of fright, without contact with the wire. Dr. Baum had testified that (quoting from the record): "From the history he learned of the case he concluded that the results of this case was the result of a shock," and upon being asked what kind of a shock he meant, he said: "Well, from the *Page 462 history I elicited it was rather an electric shock or fright." He probably used the word "either" instead of "rather," which is in the record, for the next question was: "Tell the jury whether or not her condition could have been produced by fright merely without receiving an electric shock, or by the electric shock, if you say it could have been produced by either tell them which, in your judgment, was the most probable cause of it?" His reply to that was: "It is probable for either to have caused it; it is possible for an electric shock to have caused it; it is my opinion that an electric shock could have caused her condition." Then he was asked: "You have said either of them could; it is possible either of them could," and replied: "Yes, sir." Then came the question in controversy, which was: "Are you able to say as a physician, form her condition as you found it, which, in your judgment, probably caused her condition — shock from mere fright or electric shock?" The question was objected to but the objection was overruled, and he answered: "I would say that the more probable was electric shock." A motion was at once made to strike out that answer, but it was overruled.
Even from the present standpoint of the appellee, there ought not to be any serious doubt that the motion should have prevailed, and perhaps would have been granted if the learned Judge below had observed that it was not an answer to the question. Dr. Baum did not answer the question, "Are you able to say as a physician," etc., and has never said that merely as a physician he could answer that question, but he proceeded at once to give his opinion. He was not asked whether he could say as an electrical expert, or from the history of the case, or from any standpoint other than as a physician, which of the two causes probably produced her condition. Yet we are told that the appellant cannot have the benefit of its objection to the question, because it was not specially made on the ground that he was not a competent witness to testify as an expert. He was, as we have seen, admittedly a medical expert, and he was asked whether he could "say as a physician," etc. If the question had been otherwise *Page 463 unobjectionable, it would have been difficult to have excluded it on the mere ground that he was not an expert, because he was the kind of expert the question referred to. If he had first answered the question that was asked him, in the affirmative, he could have then been further questioned as to his knowledge as a physician of the effects of an electrical current, etc., and then the defendant could, and probably would, have objected on the ground that he was not competent to testify as an expert on the subject involved in the question, for he subsequently admitted on cross-examination that he was not an electrical expert and was unable to say whether the plaintiff could suffer from an electric shock if there was not contact between the wire and the person. It would, therefore, be carrying the rule contended for further than any authorities we are aware of have gone, and certainly further than we are willing to go, to say that the question cannot now be raised because the record does not show that the objection was specially made on the ground that the witness was not competent as an expert, notwithstanding the facts above referred to.
But in addition to what we have said, we are of the opinion that there was error in allowing the question to be asked, and such error as we clearly had the right to review. We cannot read the testimony of Dr. Baum without reaching the conclusion that his answer was nothing more than a conjecture — a pure guess — and furthermore it was based on the history of the case he had received from the plaintiff, or in some way outside of the record. If the condition of the plaintiff might have been the result of either of the two causes spoken of — fright or actual contact with the wire — as he swore it might have been, it was impossible for him to know any better than the jury which of the two caused it, unless there were some marks, or something to distinguish between the two, which he did not pretend was the case. In justice to the doctor we must assume, what his testimony as recorded seems to clearly indicate, that he was influenced by the history of the case as he had gathered it, which undoubtedly was *Page 464 not permissible. If he had been sufficiently versed in the effects of electric currents, a hypothetical question might have been so framed as to elicit an answer that would have been admissible, but to permit him to answer the question under the circumstances we have related, was simply allowing him to decide the very question that the jury had to determine, without being better qualified than they were to do so. We do not mean to say there may not be cases in which an expert can say which of two causes may be the most probable, but this is not such a case, if we are to be governed by what is in the record. Dr. Baum did not pretend to be an electrical expert but testified that he was not, but if we could assume that he was, or if we conceded that that question cannot be reviewed by us, he did not suggest that there was anything, unless it be the history of the case, which enabled him to distinguish between the two causes, either of which he said could probably have produced the condition he found the plaintiff in.
So without referring to other questions, we must overrule the motion for a re-argument.
Motion for re-argument overruled. *Page 465