Valensin v. Valensin

Temple, J. Action for a divorce on the ground of cruelty, which consisted in a course of treatment on the part of defendant, causing grievous bodily suffering and grievous mental anguish.

On the trial, Dr. Simmons was called as a witness for plaintiff. He stated that he had attended both plaintiff and defendant professionally. He was asked as to the condition of plaintiff’s health. Witness declined to answer, unless he was assured by the court he would not be cross-examined, averring that he might be required to state, on such cross-examination, matters which had been confided to him professionally.

Plaintiff was personally present in court, and her counsel then released the witness from any obligation to secrecy. Counsel then stated:—

“We expect to ask his professional opinion as to whether, in the condition of health in which she was, it would have been seriously detrimental to her health to be subject to annoyance, excitements, threats, and the anxiety caused by such threats. We do not propose to ask what was the cause of her ill-health, but whether, in the condition in which he found her, her health was likely to be seriously injured by being subjected to the said harassing trouble that we think she was about that time subjected to.”

[108]Evidence had been introduced tending to show conduct on the part of defendant of the character charged in the complaint, and that its effect on the plaintiff had been to produce nervous excitement and exhaustion.

A hypothetical question was then propounded, which had reference entirely to the effect which would probably result to plaintiff in her then condition from the acts (which were specially- recited) which plaintiff claimed to have proven.

The question did not involve the statement of any matter which the witness had learned from the defendant. The witness did not in fact claim that it did. On the contrary, he would willingly consent to answer, if the court would protect him from cross-examination, which might, as he thought, make it necessary for him to reveal professional secrets confided to him by defendant.

The court was asked to compel the witness to answer, but declined, and plaintiff excepted. In this, we think, the court erred. The matter was material and relevant. The form of the final question was objectionable, but no objection was interposed. Had there been, the objection could easily have been avoided by a new question. As the matter was material and relevant, the witness should have answered, and the court erred in not compelling it.