The opinion
DISSENTING OPINION
Martin, J.
— I cannot agree with the majority opinion in this case.
The plaintiff had only one medical expert witness to prove that the defendants were guilty of negligence. He was a young ex-Army doctor, formerly of Gary but practicing at Manito, Illinois, at the time of trial.
*59 The. witness in question was Doctor Fremont who was bom in Austria, graduated from the University of Vienna - Medical School - in 1936, came to the United States in. 1938, immediately applied for citizenship and became a citizen as soon as the five years expired in 1943. He served his year of internship at the American Hospital in-Chicago in 1939 and then was resident physician at Methodist Hospital in Gary for a year and a half,- 1941-1942. He was then resident • physician in St. Louis and in Geneva, Illinois, in 1942-1943.
He obtained his medical license in Illinois in 1943 as soon as he became a citizen. Shortly afterward, in the spring of 1944, he became a ■ lieutenant in the - Army Medical- Corps, was promoted to captain, served in army hospitals in the United States and ten months in the large hospital at Iwo Jima, near Japan.
While he was resident physician at Methodist Hospital in Gary he had not yet obtained' a physician’s license from the State of Indiana because he had not yet obtained his citizenship. But he had already served his internship in Chicago, and he assisted the physicians and surgeons of Gary generally in their medical and surgical work in the Methodist Hospital, including thyroid gland operations such as is involved in this case.
Though not in Gary during 1945-1947 when this malpractice was committed, he testified that he had become familiar with the standards of medical care and skill in that community in 1941-1942 while working with the Gary physicians and surgeons as resident physician at Methodist Hospital, that when he returned from the Army in 1946 he found the medical practice and standards to be the same in this general vicinity as they had been while he had been in Gary. In the latter respect, he was fully corroborated by the admission of defend *60 ant Adolph Goldstone who testified that the standards of medical and surgical care and skill in Gary in 1945-1947 at the time of this malpractice were substantially the same and at least as high as they had been during 1941-1942 while Dr. Fremont was in Gary.
Dr. Fremont testified in positive terms at the time of trial that he was then familiar with the average degree of care and skill commonly exercised by members of the medical profession in Gary and similar communities during 1945-1947, which is all that is required to qualify a medical expert to testify in a malpractice case.
The court let the plaintiff’s case go to the jury on Dr. Fremont’s testimony, but damaged it irreparably in the eyes of the jury before it went to them. The damage to plaintiff’s case, and the error here complained of, is that in the same breath in which the court ruled he was qualified to testify, the court made gratuitous comments in the presence of the jury disparaging his qualifications as an expert and the weight of the expert opinions he was about to express.
The remarks of the court complained of are as follows:
_ “The Court. I am going to overrule the objection on the theory that the witness has stated his degree of knowledge which would make it appear . is of some value, and let the jury, determine what , the testimony is worth, although I think that the ■ better rule may be that this type of a witness should ' be a member of the profession in all respects at the time he gained knowledge to which he testified.”
The damaging character of the court’s remarks is apparent from its context. Immediately after this disparagement, and under the cloud of it, plaintiff was obliged to start offering the opinions of this expert to the jury. He was discredited before he started.
*61 It is my opinion that the remarks of the court were prejudicial and reversible error.
64 C. J., Trial, §104, p. 100, provides as follows:
“The judge presiding at the trial of an action should abstain from any remark or comment, in the presence and hearing of the jury, which tends to discredit or disparage any witness or evidence. . .
64 C. J., Trial, §102, pp. 98, 99, provides as follows:
“It is improper for the judge presiding at a trial to indicate, by any comment or remark made in the presence and hearing of the jury, his opinion as to the weight or sufficiency of any evidence in the case, or as to what has or has not been established, or the extent of the damages for which recovery is sought, or to state that particular facts have been proved, where they are in dispute, or that there is no evidence in support of a contention, where evidence has in fact been introduced. . . .”
In the case of Kintner v. The State, ex rel. Ripperdan (1873) 45 Ind. 175 , the court said:
“The question whether the witness was worthy of credit or not was a question for the jury, and the defendant was entitled to have that question go to them without the remarks from the court disparaging or destroying the force to be given to his testimony and showing that in' the opinion of the court the witness had.committed.perjury. Had the court made use of the remarks in question in a formal instruction to the jury, no one could doubt, we think, as to its impropriety. We think it was equally improper for the court to make the remark when and in the manner made.”
While in the above case the .court was commenting on the credibility of a lay witness, comments by the court disparaging the qualification of an expert wit *62 ness and the weight ,of his expert opinion is equally damaging to a plaintiff’s case.
In the case of Muncie Pulp Co. v. Keesling (1906), 166 Ind. 479, 488, 489 , 76 N. E. 1002 , the court said:
“. . . And the court instructs you that when witnesses are otherwise equally credible and their testimony otherwise entitled to. equal weight, greater weight and credit should be given to those whose means of information were superior and also to those who swear affirmatively to a fact rather than to those who swear negatively or to a want of knowledge or recollection.
“Appellant’s counsel assail this instruction, and insist that the giving thereof to the jury constituted reversible error. In this contention we concur. An instruction identically the same as that portion of the one in question which we have embraced in italics was condemned by this court and held to constitute reversible error in Jones v. Casler (1894), 139 Ind. 382 , 38 N. E. 812 , 47 Am. St. 274. The question relative to the weight of the evidence was one wholly for the determination of the jury. That the trial court in giving the charge in controversy clearly invaded the province of the jury and therefore erred is settled beyond controversy, not only by the holding in Jones v. Casler, supra, but by the following cases: Blizzard v. Applegate (1878), 61 Ind. 368 ; Fulwider v. Ingels (1882), 72 Ind. 414 ; Shorb v. Kinzie (1885), 100 Ind. 429 ; Cline v. Lindsey (1887), 110 Ind. 337 , 11 N. E. 441 ; Durham v. Smith (1889), 120 Ind. 463 , 22 N. E. 333 ; Newman v. Hazelrigg (1884), 96 Ind. 73 ; Finch v. Bergins (1883), 89 Ind. 360 ; Lewis v. Christie (1885), 99 Ind. 377 ; Billings v. State (1886), 107 Ind. 54 , 6 N. E. 914 , 7 N. E. 763 ; 57 Am. Rep. 77 ; Indianapolis St. R. Co. v. Taylor (1905), 164 Ind. 155 , 72 N. E. 1045 ; and cases there cited.”
An attempted disavowal by the judge of his own prior remarks simply leaves the jury in a quandary and free to infer that the judge was stating his true views the first time. In the case of Potter v. State (Georgia, 1903), 117 Ga. 693 , 45 S. E. 37, 38, 39 , the court said:
*63 “There is connected with the court no one of higher authority to bestow upon the judge the frown of disapproval or to caution the jury not to allow his improper conduct to influence them.”
In the case of Kluge v. Northern Pac. Ry. Co. (Wash. 1932), 167 Wash. 294 , 9 P. 2d 74, 77, 78 , the court said:
“The matter of the relations existing between court, jury, and counsel for the respective parties is one of great delicacy. The balance is very eásily upset, and the matter of readjustment is one of great difficulty. In our opinion, the remarks of the court were erroneous and prejudicial to appellant. ... we deem the general instruction, above referred to, wholly insufficient to overcome the erroneous impression which it must be held the jury received from the statements made by the court. ... In the case of State v. Jackson, supra, this court, speaking through Chadwick, J., said: ‘Every lawyer who has ever tried a case, and every judge who has ever presided at a trial, knows that jurors are inclined to regard the lawyers engaged in the trial as partisans, and are quick to attend an interruption by the judge, to which they may attach an importance and a meaning in no way intended. It is the working of human nature of which all men who have had any experience in the trial of cases may take notice. Between the contrary winds of advocacy a juror would not be a man if he did not, in some of the distractions of mind which attend a hard-fought and doubtful case, grasp the words and manner of the judge as a guide to lead him out of his perplexity.’ ”
In the case of Kintner v. The State, ex rel. Ripperdan, supra, the judge made disparaging remarks regarding the weight of a witness’ testimony in the presence of the jury and then at the close of the trial attempted to cure the error by instructing the jury as follows:
“Now it is for you to determine what the evidence shows in this case.”
*64 But the Supreme Court held that the error was prejudicial and reversible, notwithstanding this instruction of the court at the close of the case. Likewise, in the above Kintner case, the procedure was identical with that adopted here. Immediately after the court’s prejudicial remarks appellant’s counsel in that case said: “To that remark we except,” as did appellant’s counsel in the present case. In the Kintner case the appellant moved for a new trial under the same clause of the statute which appellant used in the present case, namely, “Irregularity in the proceedings of the court ... by which the party was prevented from having a fair trial,” and the Supreme Court held this was the proper method of raising the question. I am of the opinion that the trial court erred in overruling appellant’s motion for a new trial.
This case should be reversed.
Note. — Reported in 103 N. E. 2d 920 .