as a physician and surgeon, he has any paralysis of the left leg." The questions were based upon facts that had come to the knowledge of the witness after he had quit treating appellee. Objections were sustained to each of these, and the facts that appellant expected to prove in answer thereto were stated. (The objection was sustained to each, and exceptions taken thereto.) These rulings are cited as error. The first and second questions were preliminary, and the court erred in excluding them. The fault of the third question lies in the fact that there was included in it no statement of the facts admitted, or proven, or assumed to be true, on which an opinion could be based. The witness was not asked to state any fact observed by him under the circumstances specified. "It is the well-established rule that an expert witness, in giving his opinion, must fairly state the facts upon which he bases his opinion." Railway Co. v. Holsapple, 12 Ind. App. 306, 38 N. E. 1107, and authorities there cited. In the statement of In the statement of what appellant expected to prove in answer to the last question, counsel said that they expected to prove that the witness, "as an expert physician and surgeon, had given close attention to the plaintiff, and especially to his walking, while in the court room, during the progress of the trial; and that, if permitted to answer, he would testify that, in his opinion, plaintiff's left leg was not affected in in any any way." This statement amounted only to an expression of the intention to give an opinion, without the statement of the facts upon which it was based. The court did not err in sustaining the objection. An objection was sustained to the following question, propounded to the same witness, in which appellant claims that the court erred: "Question. I will ask you this question as an expert: If a person claims to be paralyzed in his voice, his vocal or gans, and exhibits great difficulty in speech, and yet, when becoming excited, would talk off sentence after sentence without any stuttering, or any impediment, would you conclude, as an expert, that he was paralyzed in the voice, or that he was not?" Appellant's counsel stated that they expected to prove, in answer to the question, that the facts stated in the hypothetical question would tend to prove malingering, and that the person is not paralyzed in his voice. It is not claimed that there is any evidence tending to establish the facts assumed, nor does counsel state that evidence would be introduced to establish the facts. The objection was, therefore, properly sustained. Counsel next contend that the court erred in refusing to give instructions Nos. 1 and 2 requested by appellant. These instructions were fairly covered by instructions given; the first by instruction 8, the second by instruction 5. It is also argued that the giving of the following portions of instruction No. 13 to the jury on the question of damages was error: "In addition, you may consider the professional occupation of the plaintiff, and his ability to earn money; and he will be entitled to recover for any permanent reduction of his power to earn money by reason of his injuries." It is argued that damages which accrue by reason of injuries which affect a person's capacity to earn money are special; that, in order to recover for such damages, they must be specifically alleged, and that this complaint fails to do this. The complaint contains this averment: "That plaintiff is a minister of the gospel, and that his said injuries render him unable to carry on said occupation on account of a partial loss of voice, resulting from said fall upon said sidewalk." This averment apprised appellant of what appellee expected to prove, but appellant's counsel claim that this was not sufficient to authorize any recovery on that averment. The instruction is sustained by the following decisions: City of Indianapolis v. Gaston, 58 Ind. 224; City of Logansport v. Justice, 74 Ind. 386; Town of Elkhart v. Ritter, 66 Ind. 141. There are other alleged errors discussed, but, as they may not arise upon a second trial of the cause, we do not deem it necessary to discuss them. The judgment is reversed, with instructions to the trial court to sustain the motion for a new trial. BLACK, J. (dissenting). Our statute (section 497, Horner's Rev. St. 1897; section 505, Burns' Rev. St. 1894) provides that physicians shall not be competent witnesses as to matter communicated to them as such by patients in the course of their professional business, or advice given in such cases. In Insurance Co. v. Wiler, 100 Ind. 92, it was said, in discussing this statute, that, while the modern statutory changes in this and other states upon the subject of witnesses have not included the abolishment of the common-law protection of confidences between attorney and client, which in this state are expressly protected by statute, they have extended what was evidently intended to be a like protection to confidences between physician and patient. It was there further said that the purpose of the statute is not the suppression of the truth needed for reaching correct results in litigation, though this may sometimes incidentally occur, as it may in other instances of exclusion on the ground of wise policy, but the purpose is the promotion and protection of confidence of a certain kind, the inviolability of which is deemed of more importance than the results sought through compulsory disclosure in a court of justice; and it was held that, notwithstanding the absolutely prohibitory form of this statute, it confers a privilege which the patient, for whose benefit the provision, is made, may claim or waive. In Edington v. Insurance Co., 5 Hun, 1, it was said that the statute of New York "was enacted for the purpose of extending to the relation between a patient and his physician the same rule of public policy by means of which the common law protected the professional confidence existing between a client and his attorney, ✦ and it should be inter preted and enforced in a liberal spirit, with a view to effectuate its purpose." This language was, in Association v. Beck, 77 Ind. 203, said to be applicable to our statute on the subject then in force, affording protection like that given by our statute now in force. See Insurance Co. v. Wiler, supra; Association v. Riddle, 91 Ind. 84; Turnpike Co. v. Andrews, 102 Ind. 138, 1 N. E. 364; Williams v. Johnson, 112 Ind. 273, 13 N. E. 872; Heuston v. Simpson, 115 Ind. 62, 17 N. E. 261; Morris v. Morris, 119 Ind. 341, 21 N. E. 918; Insurance Co. v. Deming, 123 Ind. 384, 24 N. E. 86, 375; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973; Springer v. Byram, 137 Ind. 15, 36 N. E. 361; Railroad Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, and 38 N. E. 871. Where a party did not call as a witness his attorney, who was present at the time of the transaction in dispute, and was present at the trial, though, under the rule of the court, the attorney could have testified by leave of court, or without leave by afterwards withdrawing from participation in the trial, it was held not error for the court to interrupt the argument of another attorney, and prevent him from commenting upon such omission, and to instruct the jury not to draw any unfavorable inference against the party because of such omission. Freeman v. Fogg, 82 Me. 408, 19 Atl. 907. In Graves v. U. S., 150 U. S. 118, 14 Sup. Ct. 40, it was held that, the wife of a person accused of crime, not being a competent witness either for or against him, a comment of the district attorney, permitted by the court, upon her absence from the trial, was reversible error. In Wentworth v. Lloyd, 10 H. L. Cas. 589, commenting upon the case of a party who enforces the rule against the disclosure by his solicitor of knowledge professionally acquired, Lord Chelmsford expressed the opinion that there was no analogy between a client closing the mouth of his solicitor upon a question as to professional communications and the conduct of the jeweler in Armory v. Delamirie, 1 Strange, 505, who, when a mounted jewel, which had been found, was brought to him, took out the stones, and returned the empty socket to the finder, and, not producing the jewel at the trial of the action brought to recover its value, was made to pay in damages the value of a jewel of the finest water which would fit the socket, upon the rule "omnia præsumuntur contra spoliatorem." His lordship remarked that, to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which could thus only be asserted to his prejudice? The cases referred to in the opinion of the majority as cases cited in the Encyclopedia of Pleading and Practice in support of the proposition that counsel may comment upon the absence or nonproduction of witnesses by the adverse party, when they are shown or presumed to be cognizant of the facts in issue, do sustain that general proposition, but they do not involve the question as to privileged communications to physicians. sicians. In Bullard v. Railroad Co., 64 N. H. 27, 5 Atl. 838, it does not appear from the report of the case that there was any statutory provision respecting the competency of physicians to testify concerning confidential communications to them as physicians; and in Evans v. Town of Trenton, 112 Mo. 390. 20 S. W. 614, and Ccoley v. Foltz, 85 Mich. 47, 48 N. W. 176, there are no discussions upon the question, and the remarks pertinent to the question here involved seem unnecessary for the decisior of those cases. It is true, as a general rule, that, where a party suppresses evidence, a presumption may be indulged that its production would be against his interest; but shall the exercise of the statutory privilege relating to confidential communications to a physician be classed as suppression of evider.ce? If it be true, as a general rule, that where a party withholds evidence in his possession, and within his power to produce, which is pertinent to the case, and adapted to the removal of doubts or uncertainty, the jury may be justified in drawing the inference or indulging the presumption that the evidence withheld would be injurious to the cause of the party withholding it, this amounts practically to a requirement to produce the evidence; and such a rule should not be extended to evidence which the statute permits a party to withhold. To hold that where the patient has asserted the privilege, and has, by his claim of right, excluded the testimony of the physician, this shall raise a presumption that the testimony excluded would have been prejudicial to the patient, has practically the detrimental effect which would accrue from the overruling of his objection, or the waiver of the privilege, and the admission of injurious testimony from the physician. Where a party exercises his statutory right to exclude the testimony of a witness, there is a suff cient reason for the absence of the testimony from the case; and its nonproduction, therefore, cannot be a proper subject for adverse comment. The rule which the opinion of the majority favors would, in effect, deprive a party of his statutory right to treat his communications to his physician as privileged, and would turn that which the statute provides for his protection in to a snare for his entrapping. The exercise of the statutory privilege by a party would result in benefit to his adversary. In many cases it must be supposed the party securing the enforcement of the statute would sacrifice all the benefit of the evidence in his favor, and would lose his case, simply because he did what the statute gave him an unqualified right to do. I am of the opinion that there was no error in the action of the court in restraining counsel in argument, or in the giving of instruction No. 9. action, and the rules of practice in civii suits apply. City of Hammond v. New York, C. & St. L. Ry. Co., 5 Ind. App. 526, 31 N. E. 817, and cases cited. The act creating the appellate court does not assume to define appellate jurisdiction generally, but simply the jurisdiction of that court. If appellate jurisdiction is invoked, it is in the supreme court, unless the case falls within one of the classes jurisdiction over which is placed in the appellate court by the act creating it. That is to say, an appeal can be taken to the appellate court in no case that could not HENLEY, J., concurs in the dissenting have been appealed to the supreme court opinion. 1. An action to recover a penalty for the violation of a city ordinance is a civil action, and the rules of practice in civil cases apply. 2. As, under Burns' Rev. St. 1894, § 644 (Horner's Rev. St. 1897, § 632), an appeal cannot be taken to the supreme court in an action originating before the mayor of a city, where the amount in controversy, exclusive of interest and costs, does not exceed $50, no appeal in such a case can be taken to the appellate court, since the act (Burns' Rev. St. 1894, § 1336 et seq.; Horner's Rev. St. 1897, § 6562a et seq.), creating that court, did not enlarge or extend appellate jurisdiction. prior to the act creating the appellate court. That act did not enlarge or extend appellate jurisdiction. Burns' Rev. St. 1894, § 1336 et seq. (Horner's Rev. St. 1897, § 6562a, et seq.). Prior to the creation of the appellate court, an appeal could not have been taken to the supreme court in an action originating before the mayor of a city where the amount in controversy, exclusive of interest and costs, did not exceed $50. Burns' Rev. St. 1891, § 644 (Horner's Rev. St. 1897, § 632). As the statute creating this court did not enlarge general appellate jurisdiction, it follows that an appeal to this court in a case like this will not lie. See Ex parte Sweeney, 126 Ind. 583, 27 N. E. 127; Clinton Tp. v. De Haven (Ind. App.) 53 N. E. 650; Ridge v. City of Crawfordsville, 4 Ind. App. 513, 31 N. E. 207; Ewbank, Ind. App. Proc. § 89. Appeal dismissed. BLACK, J. (dissenting). The supreme court has jurisdictions in appeals under such regulations and restrictions as may be prescribed by law. Const. Ind. art. 7, § 4. By the statute (section 632, Horner's Rev. St. 1897; section 644, Burns' Rev. St. 1894), it is provided: "Appeals may be taken from the circuit courts and superior courts to the supreme court, by either party, from all final judgments, except in actions originating before a justice of the peace or mayor of a city H. C. Skillman, for appellant. John T. where the amount in controversy, exclusive Dye and Cortez Ewing, for appellee. ROBINSON, J. Appellant sued appellee before the mayor of a city, and in that court recovered a judgment of $10 in the nature of a penalty for violation of a city ordinance regulating the speed of trains. Appellee appealed to the circuit court, and a trial resulted in a judgment in appellant's favor for $1. Upon motion of appellee, costs were taxed against appellant, and this action of the court is the only error assigned. Appellee has filed a motion to dismiss the appeal because the action originated before the mayor of a city, and the amount in controversy was less than $50, exclusive of interest and costs. It appears from the record that the validity of an ordinance is not involved. The action brought by appellant is a civil of interest and costs, does not exceed fifty dollars. Provided, however, that this exception shall not apply to prohibit an appeal in cases originating before a justice of the peace or mayor of a city, involving the validity of an ordinance passed by an incorporated town or city." This statute, it is hardly necessary to say, relates to the jurisdiction of the supreme court alone. It was enacted long before the creation of the appellate court. At different times the statutes have prescribed various sums as the amount which must be in controversy in actions originating before Justices or mayors to authorize an appeal to the supreme court. The act creating the appellate court, and the acts amendatory thereof and supplementary thereto, have conferred upon this court the jurisdiction which it possesses. We are to look to those statutes for our authority, and not to the statute above quoted, regulating and restricting the jurisdiction of the supreme court. The appellate court, by the amendatory statute of 1893, is given "exclusive jurisdiction, subject to the exceptions hereinafter designated, of appeals from the circuit, superior and criminal courts, in the following classes of cases: * * * Second. All appeals from judgments rendered in cases which originated before a justice of the peace, and in which the amount in controversy, exclusive of interest and costs, exceeds fifty dollars. Third. All actions seeking the recovery of a money judgment only, where the amount in controversy exclusive of costs does not exceed thirty-five hundred dollars. * The appellate court shall not have jurisdiction in any case where the constitutionality of a statute, federal or state, or the validity of an ordinance of a municipal corporation is in question and such question is duly presented." Section 1336, Burns' Rev. St. 1894 (section 6562a, Horner's Rev. St. 1897). In the original act creating the appellate court, of which the above-mentioned statute of 1893 was amendatory, the court was given jurisdiction of all appeals from the circuit, superior, and criminal courts in cases originating before a Justice of the peace "where the amount in controversy exceeds fifty dollars ($50) exclusive of costs," not including the words "interest and," which are included in the amendatory act of 1893, and in the abovequoted section 632 (section 644), relating to the supreme court. While the appellate court now has exclusive jurisdiction of such appeals in cases originating before a justice of the peace as were, immediately before its creation, within the jurisdiction of the supreme court, yet under the above-mentioned act of 1891 the appellate court might take Jurisdiction in a case so originating if the amount in controversy, including interest, but excluding costs, exceeded $50, while under the amendatory statute of 1893 the amount in controversy must exceed $50, exclusive of both interest and costs, as was true of the supreme court under the abovequoted provisions of section 632 (section 611). Not only did the act creating this court give it jurisdiction of a class of cases originating before a justice of which the supreme court did not then have jurisdiction, but that act, like the amendment of 1893, did not except from the jurisdiction of this court, as were excepted from the jurisdiction of the supreme court, actions originating before a mayor, because of the smallness of the amount in controversy. Such actions like those originating before a board of county commissioners were included in "all actions seeking the recovery of a money judgment only, where the amount in controversy, exclusive of costs, does not exceed thirty-five hundred dollars," unless the constitutionality of a statute or the validity of a municipal ordinance be properly brought in question. Shea v. City of Muncie, 148 Ind. 14, 46 N. E. 138, was an action commenced before the mayor of the city of Muncie to recover a penalty for the violation of an ordinance of the city. On appeal the circuit court rendered judgment against the defendant for one dollar. On appeal by the defendant to the supreme court that court retained jurisdiction, the validity of the ordinance being in question, and affirmed the judgment of the circuit court. See, also, City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 107, 39 N. E. 433; City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315. City of Hammond v. New York, C. & St. L. Ry. Co., 5 Ind. App. 526, 31 N. E. 817, was an action commenced before the mayor of a city to recover the penalty for running a train at a greater rate of speed than six miles per hour, in violation of a city ordinance, which prescribed a penalty in any sum not exceeding $100. There was a judgment before the mayor against the defendant for the $100. On appeal there was judgment in the Porter circuit court for the defendant. The cause was appealed by the city to the supreme court, and that court transferred it to this. for the expressed reason that "actions for the recovery of money, with all their inseparable incidents, are within the jurisdiction of the appellate court except where the validity of a statute is involved." Id., 126 Ind. 597, 27 N. E. 130. In this court the judgment of the circuit court was reversed, and a part of the mandate was that the court below render judgment for the city for such amount as the court might deem proper upon the evidence, not exceeding $100. Id., 5 Ind. App. 538, 31 N. E. 817. The supreme court, in transferring the cause for the reason that it was an action for the recovery of money, cited Parker v. Bank, 126 Ind. 595, 26 N. E. 881, and Baker v. Groves, 126 Ind. 593, 26 N. E. 1076, in both of which the action of the supreme court in transferring to the appellate court was referred to the clause of the statute relating to this court which gave it jurisdiction of "all cases for the recovery of money only," etc. In Commissioners v. Binford, 70 Ind. 208, the cause originated before a board of county commissioners, the amount in controversy being $24. The court refused to dismiss the appeal, basing its right to retain jurisdiction upon the statutory provision of March 14, 1877: "Appeals may be taken from the circuit courts and superior courts ✦✦✦ by either party from all final judg. ments, except in actions originating before a justice of the peace or mayor of a city, where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars." The court said: "This cause did not originate before a justice of the peace or the mayor of a city; hence, by the unequivocal terms of the statute, an appeal lies to this court, though the amount in contro versy, exclusive of interest and costs, does not exceed fifty dollars." Berkey v. City of Elkhart, 141 Ind. 408, 40 N. E. 1081, was a cause which originated in a city court. The judgment of the circuit court was in favor of the defendant for $10. On appeal by the defendant to the supreme court, the cause was transferred to this court. 41 N. E. 604. In Town of North Manchester v. Oustal, 132 Ind. 8, 31 N. E. 450, the appellant was the plaintiff, and sought to recover $20 for violation of its ordinance; the action being one commenced before a justice of the peace. The supreme court dismissed the appeal. Lake Erie & W. R. Co. v. City of Noblesville, 15 Ind. App. 697, 44 N. E. 651, was an action to recover a penalty for violation of a city ordinance forbidding the running of trains within the corporate limits at a rate of speed exceeding six miles an hour. It appears from the record of the cause that the action was commenced before the mayor of the city, and from the judgment rendered in his court against the defendant for the sum of $5 and costs the defendant appealed to the circuit court of Hamilton county, whence the venue was changed to the Clinton circuit court, by which judgment was rendered against the defendant for $5 and costs. From this judgment the defendant appealed to the supreme court, and at its May term. 1896, that court transferred the cause to this court, where it was decided upon its merits, the judgment of the Clinton circuit court being affirmed. In Lake Erie & W. R. Co. v. City of Noblesville, 16 Ind. App. 20, 44 N. E. 652, the action originated before a mayor, and in the circuit court the judgment was in favor of the plaintiff for $20. The appeal was taken by the defendant to the supreme court, and by that court, at its May term, 1896, the cause was transferred to this court, by which the judgment was affirmed. Ridge v. City of Crawfordsville, 4 Ind. App. 513, 31 N. E. 207, was an appeal by the defendant in an action which originated before a mayor, the judgment of the circuit court being in favor of the plaintiff for $10 and costs. This court dismissed the appeal. The court said: "Section 632, Rev. St. 1881 (Burns' Rev. St. 1894, 644; Horner's Rev. St. 1897, § 632), provides for appeals to the supreme and appellate courts from all final judgments of circuit and superior courts, except in cases originating before a mayor or justice of the peace, where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars." This was plainly an oversight, for the statute to which reference was thus made, as already observed, was enacted long before the creation of the appellate court. The decision is plainly in conflict with the later action of the supreme court as well as of this court, and should be regarded as overruled. For the reasons which I have indicated, I am constrained to dissent from the decision of the majority of the court. On the trial of the issues joined by a plea of not guilty to an information or an indictment charging the defendant with willfully and negligently failing to support his illegitimate child, the record of a bastardy proceeding instituted by the mother of the child, in which the defendant was adjudged to be its reputed father, is not admissible in evidence. (Syllabus by the Court.) Error to circuit court, Cuyahoga county. Exceptions from court of common pleas, Scioto county. In the first case, one Gee was convicted in the police court of the city of Cleveland upon an information which charged him with unlawfully, negligently, and willfully depriving his illegitimate child of necessary food, clothing, and shelter. Upon the trial of the issues joined by the plea of not guilty, the record of a civil proceeding under the bastardy act was, against the objection of defendant, admitted to establish his paternity of the child, which was alleged to have been neglected by him. The sentence of the police court was affirmed by the court of common pleas and the circuit court, and this petition in error is for the reversal of the judgments of the three courts for the admission of said evidence. Reversed. In the second case, one Slavens was placed on trial in the common pleas court of Scioto county upon an indictment charging him with neglecting and refusing to support his illegitimate child. Upon the trial the prosecuting attorney offered in evidence the record in a proceeding under the bastardy act instituted upon the complaint of the mother, in which Slavens was adjudged to be the reputed father of the child. This record was excluded by the court on objection by the defendant's counsel, and the prosecuting attorney excepted. The cause is before us upon that exception. Affirmed. T. J. Ross, for plaintiff in error Gee. Albert T. Holmes, for the State. Henry Bannon, for the State. Dever, for defendant Slavens. Noah J. PER CURIAM. The record offered is not competent, under the general rule that in a criminal proceeding the record of a civil action cannot be introduced to establish the facts on which it was rendered. The judgments offered followed verdicts which might have been lawfully returned upon a mere preponderance of evidence. A higher degree of evidence was required to convict under the indictment and the information. Greenl. Ev. 437; Britton v. State, 77 Ala. 202; Riker v. Hooper, 35 Vt. 457. In the former |