Marshall v. Brown

Michigan Supreme Court

Marshall v. Brown

15 N.W. 55, 50 Mich. 148, 1883 Mich. LEXIS 744

CourtMichigan Supreme Court

DecidedFebruary 27, 1883

StatusPublished

Cited by28 cases

This text of 15 N.W. 55 (Marshall v. Brown) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marshall v. Brown, 15 N.W. 55, 50 Mich. 148, 1883 Mich. LEXIS 744 (Mich. 1883).

Pincite

Opinion

Cooley, J.

This case comes before us for the second time ; the first verdict having been set aside on exceptions and a new trial ordered. See 47 Mich. 576. On the second trial the plaintiff again recovered.

The action is for a negligent injury. The defendant is a druggist of the city of Grand Eapids. The plaintiff called for Epsom salts at his store and a clerk delivered instead sulphate of zinc, from the taking of which, before she discovered the error, the plaintiff claims to have been seriously and permanently injured.

To show the effects of sulphate of zinc on the system experts were called, but they seem to have had very little knowledge on the subject beyond that derived from boobs. Several exceptions were taken to their evidence, which we [150]*150do not think well founded. They were entitled to speak, as they did, from the accepted facts of medical science.

One error occurred, however, which it is impossible to overlook. It was decided in People v. Hall 48 Mich 486, that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would, probably, not have been committed.

On the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked whether it was considered good authority, and he said it was. He was then requested to read a certain paragraph during the recess of the court. When the court convened again, he was recalled and counsel reading from the book the paragraph to which his attention had been called, asked him whether there was a case reported of taking sulphate of zinc, followed by vomiting, purging, and death ? As this was what the paragraph stated, the evident purpose of the question was to put the passage from the book in this indirect manner before the jury, instead of reading from it directly. The witness demurred to this method of examination, but was required to answer and did so.

The case differs from Pinney v. Cahill 48 Mich. 584, where a medical book was produced to contradict a witness who professed to be testifying from it.

The verdict must be set aside with costs, and a new trial ordered.

Graves, O. J. and Marston, J. concurred.

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Cooley, J.

This case comes before us for the second time ; the first verdict having been set aside on exceptions and a new trial ordered. See 47 Mich. 576. On the second trial the plaintiff again recovered.

The action is for a negligent injury. The defendant is a druggist of the city of Grand Eapids. The plaintiff called for Epsom salts at his store and a clerk delivered instead sulphate of zinc, from the taking of which, before she discovered the error, the plaintiff claims to have been seriously and permanently injured.

To show the effects of sulphate of zinc on the system experts were called, but they seem to have had very little knowledge on the subject beyond that derived from boobs. Several exceptions were taken to their evidence, which we [150]*150do not think well founded. They were entitled to speak, as they did, from the accepted facts of medical science.

One error occurred, however, which it is impossible to overlook. It was decided in People v. Hall 48 Mich 486, that it was not competent to read professional books to the jury as evidence. The decision had not been made when this case was tried the second time; if it had been the error now complained of would, probably, not have been committed.

On the cross-examination of Dr. Wood, a witness for the defendant, he was asked if he was acquainted with a certain book. He replied that he had heard of it but had not read it. He was then asked whether it was considered good authority, and he said it was. He was then requested to read a certain paragraph during the recess of the court. When the court convened again, he was recalled and counsel reading from the book the paragraph to which his attention had been called, asked him whether there was a case reported of taking sulphate of zinc, followed by vomiting, purging, and death ? As this was what the paragraph stated, the evident purpose of the question was to put the passage from the book in this indirect manner before the jury, instead of reading from it directly. The witness demurred to this method of examination, but was required to answer and did so.

The case differs from Pinney v. Cahill 48 Mich. 584, where a medical book was produced to contradict a witness who professed to be testifying from it.

The verdict must be set aside with costs, and a new trial ordered.

Graves, O. J. and Marston, J. concurred.

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Bluebook (online)

15 N.W. 55, 50 Mich. 148, 1883 Mich. LEXIS 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-brown-mich-1883.

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