207 F. 817 | 9th Cir. | 1913
The complaint in this action, which is for damages for personal injuries alleged to have been received by the plaintiff below, defendant in error here, through the alleged negligence of the defendant to the action, was twice amended; the sufficiency of that upon which the case was tried being questioned by two demurrers, one general, and the other special, and by two motions, in support of each of which are cited in the brief here filed for the plaintiff in error a large number, of authorities. It is readily conceded that the complaint might well have been more concise, logical, and clear; but we are of the opinion that its manifest defects are not fatal.
In addition to the jurisdictional facts, it alleges, in effect, that at the times in question the defendant to the action was the owner of and engaged in operating a railroad from Clifton, Ariz., to Hachita, N. M. (then territories, but since become states), carrying both passengers and freight for hire over its road between the points mentioned; that at Clifton it owned and maintained as a part of its road a large number of tracks, turnouts, and switches, for the storage of cars, and for the making up of trains, which tracks and switches extended from
In its answer the defendant put in issue all the allegations in respect, to its negligence, and alleged that the plaintiff’s injuries were caused by his own negligence and want of care, and also set up that the in
The ruling of the trial court refusing to permit the defendant to introduce the testimony of two witnesses—Kelly and Kline—is also assigned as error.
We think the rulings right. So far as concerns the signals, the evidence showed that the plaintiff strictly obeyed the signals given him in the instance in question by stopping his engine within eight seconds after receiving it, resulting in the injuries complained of, and we find nothing in the evidence to the contrary. Whether he failed to obey some other signal at some other time was manifestly immaterial.
“By the weight, of authority evidence of plaintiff’s habits and usual conduct as to a particular act, or of his character for prudence or recklessness, is not-admissible on the question of contributory negligence”—citing numerous cases.
See, also, Id. 610.
In 21 Am. & Eng. Encyc. of Eaw (2d Ed.) 518, it is said:
“It is a general rule that in an action for negligence evidence is not admissible of other independent and disconnected acts of negligence as going to show negligence in the case at bar. It is fundamental, indeed, that evidence of any alleged negligent act or omission which could not by any possibility have contributed to the plaintiff’s injuries should not be received. But where, though an act or omission may in a sense be collateral, yet from it an in*821 fornico of fact inay be drawn bearing upon the particular act or omission alleged to be negligent, and from which the injuries resulted, evidence thereof is not Incompetent. And so where the injuries complained of resulted from the combined or concurrent effect of the acts of several parties, evidence of the negligent act of each, performed independently of the others, is admissible.”
See, also, Missouri, K. & T. Railway Co. v. Johnson, 92 Tex. 380, 48 S. W. 568; 6 Thompson on Negligence, § 7792.
“What purports to bo the entire deposition of Baker is sent up by the clerk of the District Court, and is printed in the record before us, and if properly before us might sustain the exception; but this deposition is not incorporated1 in the bill of exceptions, nor so referred to in it as to be made a part of the record of the case. It is only a useless incumbrance of the transcript, and an expense to the litigating parties.”
That case was cited with approval by the same court in United States v. Copper Queen Mining Co., 185 U. S. 495, 498, 22 Sup. Ct. 761, 46 L. Ed. 1008. See, also, Alaska Commercial Co. v. Dinkelspiel, 126 Fed. 164, 61 C. C. A. 108; Boatmen’s Bank v. Trower Bros. Co., 181 Fed. 809, 104 C. C. A. 314; Star Co. v. Madden, 188 Fed. 910, 110 C. C. A. 652.
A statute of Arizona provides:
“A physician or surgeon cannot bo examined without the consent of his patient as to any communication made by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by personal examination of such patient; Provided, that if a person offer himself as a witness and voluntarily testify with reference to such communications, that is to be deemed a consent to the examination of such physician-or attorney.”
Such statutes are designed to protect the patient, and should be liberally construed to that end. Underhill on Crim. Evid. (2d Ed.) § 179, p. 341; 23 Am. & Eng. Encyc. of Eaw (2d Ed.) pp. 83, 84, 85, and numerous cases there cited.
It is contended on behalf of the plaintiff in error that “Dr. Stark was employed and paid by the defendant company for the purpose of being advised of the condition of the patient’s eye at the date of examination”; and such appears from the evidence to have been the fact. But the trial court found that the plaintiff did not know the real purpose of the calling in of Dr. Stark, but believed that the latter’s services were engaged for his, plaintiff’s benefit, and as his physician in connection with Dr. Dietrich. The record contains a
“Q. Tell us what the hospital was where you were examined. A. They call it the A. O. Hospital.
“Q. Is that, or is it not, the hospital in which injured employes of the defendant are examined? A. Yes, sir.
“Q. Did you know that to be the fact at the time of your examination ? A. Yes, sir.
“Q. Who was it that requested you to be examined, if any one, by Dr. Stark? A. I think it was Dr. Dietrich.
“Q. You think Dr. Dietrich suggested it? A. Yes, sir; he told me when he would be there.
“Q. Was anything said to you with reference to the purpose for which that examination was requested or required? A. To examine my eye.
“Q. Dr. Dietrich was then in attendance upon you as your physician? A. I was still under his charge.
“Q. Now, did you thinls; this examination by Dr. Stark was to be made for the benefit of the company or for your benefit? A. I don’t know.
“Q. You don’t know for whose benefit it was to be made? A. For my benefit, I suppose.
“Q. Is that what you understood? A. Yes.
“Q. Did you, or did you not, believe that Dr. Stark was in. consultation with Dr. Dietrich, your attending physician? A. Yes, sir.
“Mr. Kibbey: You are leading him right along.
“The Court: I think the communication is privileged—I will sustain the objection.
“By Mr. Kibbey: Q. You say Dr. Dietrich was there? A. He might have been in and out.
“Q. As a matter of fact, he wasn’t in town, was he? A. Yes, sir; I think so.
“Q. You had a conversation with Dr. Stark, didn’t you? A. Yes, sir.
“Q. In the course of that conversation, did you state to Dr. Stark that you found on the third day after the injury that you had lost the vision of your eye?
“Mr. Seabury: - We object to the question.
“The Court: I sustain the objection. .
“By Mr. Kibbey: Q. Didn’t you state to Dr. Stark that you had not had any injury to your head—received any injury to j'our head in that accident?
“Mr. Seabury: We make the same objection.
“The Court: Same ruling.
“By Mr. Kibbey: Q. Had you and the company had any talk prior to that time with reference to your condition—your ability to go to work, or anything of that kind?
“Mr. Seabury: We object.
“The Court: Is- this a general examination—isn’t it as to this matter of the competency of this doctor?
“Mr. Kibbey: I am trying to get to the matter of the competency of this doctor.
“Mr. Seabury: The question is, Did you have any talk with the company? I don’t see what—
“The Court: You°may answer.
- “The Witness: No, sir.
“By Mr. Kibbey: Q. You had not had any talk with any of them up to that time? A. No, sir.
“Q. Didn’t you know that the company desired for its own information to have an independent doctor make an examination of your eye? A. I told Dr. Dietrich about it, and he made the appointment with the doctor, I suppose.
“Q. Didn’t Dr. Dietrich tell you the company wanted an examination made for their information as to your condition, and didn’t you so understand it?
“Mr. Kearney: We object to that as a privileged communication.
“The Court: I overrule the -objection.
*823 “The Witness: I told Dr. Dietrich about it, and he tried to examine it himself, and then he made the date with Dr. Stark a few days afterwards.
"Q. Didn’t you understand it was for the information of the company to find out what the condition of your eye was? A. I supposed that was the object—very likely.
"Q. You understood when the examination was made that it was for the purpose of getting information for tlie company? A. Yes.
"Mr. Ivibhcy: Now, we think it is competent.
"Tlie Court: That answer is contradictory to the other.
"Air. Seabury: Absolutely, your honor.
"Air. Kibbey: Yes, it is.
"Air. Seabury: However, we also claim that his direct examination shows much more facts and circumstances in connection with the matter than the mere answer to that one question, and I think from the witness’ testimony, both under cross and direct examination, that it is perfectly clear that lie thought Dr. Dietrich called Dr. Stark as a consulting physician.
“Air. Kibbey: I think it is quite obvious to the contrary.
“Air. Seabury: We differ in regard to tlie inferences to be drawn from the evidence. I don’t see how tlie witness can really know—
“Tlie Court: I will put a question.
"To the witness: Q. What did you understand wás tlie object of this examination of your eye? A. To know whether it was injured or not.
"Q. What difference did it make whether it was injured or not, in your judgment? A. It would make a whole lot.
“Q. In what way? A. From good sight to blindness—I wanted that information.
“Q. Who wanted it? A. I did.
“Q. You wanted it? A. I wanted to know the condition of it. When I reported to Dr. Dietrich, he said they had no oculist, and that they would get one, and then 1 left the thing to Dr. Dietrich, and when they made the appointment I appeared there.
“Air. Seabury: We think that makes it too clear, your honor.
"The Court: i think so.”
The real purpose, as practically conceded by counsel for the plaintiff in error, of Dr. Stark’s examination of the plaintiff being to obtain information to be used against any claim on his part for damages, good faith required that the plaintiff should have been frankly told that Dr. Stark came as the representative of the company, and not left to infer that he came as his own physician, as he very well might from the statement of Dr. Dietrich, according to the plaintiff’s testimony, that he needed an oculist to consult with. Munz v. Salt Take Railway Co., 25 Utah, 220, 70 Pac. 852; 1 Elliott on Evidence, § 634, p. 741; Underhill on Crim. Evid. (2d Ed.) § 179. See, also, Union Pacific R. R. Co. v. Thomas, 152 Fed. 365, 81 C. C. A. 491, and cases there cited.
We therefore think the court below was right in excluding the testimony of the witness in question.
"Before the jury retired to consider of their verdict that the court granted permission to the defendant to embody in its bill of exceptions, if it should*824 tender one, its objections to the instructions of tbe court to tbe jury more at length and in detail.”
That none of such exceptions can be here considered was distinctly decided by this court in the case of Western Union Tel. Co. v. Baker, 85 Fed. 690, 29 C. C. A. 392, and has been so held by many other federal courts. See the numerous cases cited in that last mentioned, and in Star Co. v. Madden, 188 Fed. 910, 110 C. C. A. 652, where is set out the rule laid down by the Supreme Court in Phelps v. Mayer, 15 How. 161, 14 L. Ed. 643, as follows:
“It has been repeatedly decided by this court that it must appear by the transcript, not only that the instructions were given or refused at the trial, but also that the party who complains of them excepted to them while the jury were at the bar. The statute of Westminster II, which provides for the proceeding by exception, requires, in explicit terms, that this slioulu be done, and if it is not done, the charge of the court, or its refusal to charge as requested, form no part of the record, and cannot be carried before the appellate court by writ .of error. It need not be drawn out in form and signed before the jury retire; but it must be taken in open court, and must appear, by the certificate of the judge who authenticates it, to have been so taken. Nor is this a mere formal or technical provision. It was introduced and is adhered to for purposes of justice.”
“Tbe oral charge of the court is set out in the bill of exceptions in its entirety, and contains no reference to the question of interest. Interest in actions of tort in the federal courts is not allowable as a matter of right; • but its allowance, as part of plaintiff’s damages, is discretionary with the jury. Eddy v. Lafayette, 103 U. S. 458-467, 16 Sup. Ct. 1082, 41 L. Ed. 225.
“The jury were not instructed by the court below that they possessed any such discretion, and probably included interest in their verdict upon the idea that the plaintiff was entitled to it as a matter of right, and not of discretion.
“It is true the plaintiffs in error do not assign error because of this omission of the court; but a plain error may be noticed by us, and in the absence of any assignment.' In view of the long and unexplained delay on the part of the government in instituting the suit, we feel that a proper exercise of discretion by the jury would have denied the plaintiff interest.”
The case of Eddy v. Lafayette, 163 U. S., there cited, is. however, authority for the approval of the judgment of the court below in the present case in allowing interest from the date of the judgment. See pages 461-467 of 163 U. S., 16 Sup. Ct. 1082, 41 L. Ed. 225.
It results from what has been said that the judgment of the court below must be, and it is accordingly, affirmed.