24 Ind. App. 46 | Ind. Ct. App. | 1899
Lead Opinion
Appellee sued appellant to recover damages for personal injuries occasioned by a defective sidewalk. The complaint is in three paragraphs. It alleges that appellant, as a city, was bound to keep its sidewalks safe for travelers over them; that it failed to perform this duty as to a particular portion; that said portion was suffered to become and remain rotten, decayed, defective, and dangerous to travelers for a period of six months prior to the happening of the accident; that appellee, while traveling over said portion, stepped upon one of the boards, which broke under him, and caused him to receive the injury for which he sues. The cause was tried by a jury, and resulted in a verdict and judgment in favor of the appellee for $3,500. Of the errors assigned, only those growing out of the action of the court in overruling the motion for a new trial are discussed. They will be considered in the order in which they are presented by appellant’s brief.
The fii’st error (as claimed) discussed is the action of the court in not permitting Dr. Berkit, a witness called by appellant, to testify. The testimony sought to be elicited from Dr. Berkit was in conflict with the statements made by appellee. The objection was sustained upon the ground that the information was confidential. Appellant insists that the statute rendering such information confidential is purely for the protection of the person under treatment, and that, when the patient removes the shield from the sick room, and publishes everything that occurs therein, there is no longer a reason to be served by closing the mouth of the physician. Counsel cite the following Indiana cases as supporting their position: Nave v. Baird, 12 Ind. 318; Lane v. Boicourt, 128 Ind. 420; Becknell v. Hosier, 10 Ind. App. 5. The foregoing were suits for malpractice, and it was held that where
The second question discussed is the action of the court in not permitting one of the counsel for appellant, in the course of his argument before the jury, to comment on the fact that appellee had not called and examined as a witness Dr. Berkit, one of the physicians who had attended him; and the giving of instruction number nine.. These two alleged errors are discussed together. The instruction reads as follows: “Some comment has been made by counsel in argument upon the fact that Dr. Berkit, who was the attending physician of the plaintiff at the time of the alleged injuries, has not testified as to any fact concerning such injury. It is the law that confidential relations exist be
In the following cases it has been held that in an action for personal injuries counsel for the defendant may comment upon'the omission- of the plaintiff to call as a witness the physician who attended him. Evans v. Town of Trenton, 112 Mo. 390, 20 S. W. 614; Bullard v. Boston, etc., R. Co., 64 N. H. 27, 5 Atl. 838; Cooley v. Foltz, 85 Mich. 47, 48 N. W. 176.
The following questions were propounded by appellant to Dr. Berkit, a witness in its behalf: “As an expert physician and surgeon, have you noticed the plaintiff walking here in the court room?” “Have you seen him (plaintiff) since that time walking on the street, and have you seen him for the past few days in the court room, and walking about the court room?” “I will ask you this question, excluding any knowledge or information you obtained while treating the plaintiff, and judging from his appearance, and what you have seen of his walking, and his acting, and his movements, — physical movements of all kinds and character: State to the jury whether or not, in your opinion 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 objections were 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 proved, or assumed to be true, on which an opinion could be based. The witness was not asked to state any fact observed by him
An objection was sustained to the following question propounded to the same witness, in which appellant claims that the court erred. “I will ask you this question as an expert: If a person claims to be paralyzed in his voice,— his vocal organs, — 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 malingery, 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 numbers one and two requested by appellant. These instructions were fairly covered by instructions given; the first by instruction eight, the second by
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.
Dissenting Opinion
Dissenting- Opinion.
Our statute, §505 Burns 1894, §497 Horner 1897, 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 Penn, etc., Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769, it was said, in discussing this statute, that, while the
In Eddington 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 interpreted and enforced in a liberal spirit, with a view to effectuate its purpose This language was, in Masonic Assn. v. Beck, 77 Ind. 203, 40 Am. Rep. 295, 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 Penn, etc., Ins. Co. v. Wiler, 100 Ind. 92; Excelsior, etc., Assn. v. Riddle, 91 Ind. 84; Carthage Turnpike Co. v. Andrews, 102 Ind. 138, 52 Am. Rep. 653; Williams v. Johnson, 112 Ind. 273; Huston v. Simpson, 115 Ind. 62; Morris v. Morris, 119 Ind. 341; Aetna Ins. Co. v. Deming, 123 Ind. 384; Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L. R. A. 687; Springer v. Byram, 137 Ind. 15,
"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.
In Graves v. United States, 150 U. S. 118, 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 praesumuntur 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?
In Bullard v. Boston, etc., R. Co., 64 N. H. 27, 5 Atl. 838, 10 Am. St. 367, 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 Cooley 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 decision 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 a suppression of evidence? If it be true, as a general rale, 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
Henley, J., concurs in the dissenting opinion.