47 Ind. App. 432 | Ind. Ct. App. | 1911
— Appellee recovered damages against appellant for injuries sustained by reason of the colliding of one of its freight trains with him as he was attempting to pass over the company’s tracks in a wagon at a crossing over a highway in Orange county, Indiana.
The amended complaint is in three paragraphs. The first paragraph seeks damages for loss of personal property, the second, on account of personal injuries sustained, and the third, on account of the loss of personal property and for personal injuries. Each paragraph is based upon the alleged negligence of appellant in failing to give the' statutory signals when the train which ran against appellee was approaching the crossing described in appellee’s complaint.
The cause was put at issue, and a trial resulted in a verdict in favor of appellee. In connection with the verdict, the jury answered a number of interrogatories. Appellant moved for a judgment in its favor upon the answers to interrogatories. The motion was by the court overruled, and, over appellant’s motion for a new trial, judgment was rendered on the verdict.
The errors assigned and relied upon for reversal are the overruling of appellant’s motions for judgment upon the answers to the interrogatories, notwithstanding the general
In the ease of Battis v. Chicago, etc., R. Co. (1904), 124 Iowa 623, 100 N. W. 543, in a personal injury case, the court said: “It may be conceded that the sole purpose of the agent in calling the physician was that the latter might ascertain the condition of plaintiff, and thus be prepared to advise the company, should occasion therefor arise, or be a witness in its behalf, if necessary. Certainly, if the visit of the physician had been confined to the limits incident to such purpose alone, his eligibility as a witness on behalf of the company might not be open to question. Without doubt, a railway company, with the utmost propriety, may thus advise itself of the fact of an injury, and the character and extent thereof, in anticipation of a possible claim against it for damages. And with that end in view, it may send a physician to inspect and take notes, or otherwise inform himself of existing conditions. But this can avail the company nothing unless the physician shall strictly retain his character as an employe of the company. If, upon request, or upon his own motion, he assumes to advise or administer treatment to the patient, and the latter in any manner acquiesces therein, the physician thereby casts aside his relation as an employe of the company, and transfers his allegiance to the patient. In such instances, a case is presented where one cannot serve two masters at one and the same time. The allegiance of the physician must be wholly upon one side or the other. It matters not, in this connection, who calls him in the first instance, or who pays him. He may present himself at the side of the patient on his own motion, and he may not expect, or in fact receive, pay. The reason for this is apparent upon a moment’s reflection. If the physician assumes to advise or treat, he should be put in
In the case of Heath v. Broadway, etc., R. Co. (1890), 8 N. Y. Supp. 863, a physician of a railway company visited and examined a person injured by the alleged negligence of the company. On seeing this person, he stated to her that he came to see her on behalf of the company, and about her injuries. It was held that the statement made to him by the injured person was not privileged.
In the State of New York there is a statute in force very similar to our own, and in the case of Griffiths v. Metropolitan St. R. Co. (1902), 171 N. Y. 106, 63 N. E. 808, the Supreme Court of that state has laid down the rule as follows: “To bring the evidence of a physician within the prohibition of the code section aboye quoted, three elements must coincide: (1) The relation of physician and patient must exist; (2) the information must be acquired while attending the patient; (3) the information must be necessary to enable the physician to act in that capacity.” There is nothing disclosed by the record in the case at bar that either of these requisites was established. It is true that the witness called to see appellee, with the attending physician, not long after he was injured, not, however, in the capacity of a physician. He did not prescribe for him, or in any manner assist in his treatment. On the contrary, however, it appears that appellee was in charge of another physician, who was called to treat him at the time of Ms injuiy, and
In the well-considered case of People v. Koerner, supra, the rule is announced as follows: “Where the testimony of the physician is sought to be excluded under the section of the code, the burden is upon the party seeking to exclude it to bring the case within its provisions. He must make it appear # * * that the information which he seeks to exclude was acquired by the witness while attending the patient in a professional capacity.”
Appellee cites in support of his contention 1 Elliott, Evidence §634: “Where a physician, who is employed by the person responsible for an injury, visits the injured one, and it is fully understood by the latter that the visit is for the purpose of securing evidence as to the cause or extent of the injury, and the like, such communications made by the injured one to the physician are not privileged. But it has
The case of Munz v. Salt Lake City R. Co., supra, may be distinguished from the case at bar. In that case, the plaintiff was sent to the physician who made the examination of the injured party, so as to enable him to prescribe, if necessary, thus creating the relation of physician and patient. In the ease before us, it affirmatively appears that the relation of physician and patient did not exist between the witness and the plaintiff at the time the statement in controversy was made, and the witness should have been permitted to testify.
Other assigned errors are discussed, but may not arise in another trial.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.