| Mo. | Feb 6, 1900
This is an action by plaintiff against the defendant, a practicing physician, for damages in the sum of five thousand dollars for producing an abortion upon plaintiff’s wife, Oellantine Cramer, and in so doing using upon her body and womb certain surgical instruments, by reason of which she became greatly wounded and diseased of her body, sick, and her life endangered, and she wholly unable to perform her domestic duties, as his wife', and to give him such social companionship and to perform such social and conjugal duties as he is entitled to from her, and for moneys expended ,by him for medicine for her and for medical services.
The answer admits that Oellantine Cramer is the -wife of plaintiff; that defendant is a practicing physician; that she called upon him on the 25th day of July, 1895, for treatment, and was treated by him, and alleges that such treatment was according to his best judgment and skill, and denies all other allegations in the petition.
By reply all new matter set up in the answer is denied.
There was a verdict and judgment for defendant, and after unsuccessful motion for a new trial plaintiff appeals.
There was testimony tending to sustain the allegations in the petition, as well also as the defense set up in the answer.
During the trial Mrs. Cramer was offered as a witness in behalf of her husband, but upon objection by defendant upon the ground that she was incompetent to testify on the part of her husband she was not permitted to testify.
Over the objection and exception of plaintiff the defendant who was introduced as a witness in his own behalf was permitted to testify concerning information which he acquired from the wife of plaintiff while attending her in a professional character, by an examination of her body and from conversation with her, which was necessary according to his testimony in order to enable him to treat her, as well also as to the conversations had between himself and her with respect to her
By section 8925, Revised Statutes 1889, a physician or surgeon is prohibited from testifying concerning any information which he may have acquired from any patient while attending him or her in a professional character, if such information is necessary to enable him to prescribe for such patient as a physician, or to do anything for such patient as a surgeon and unless this statute does not mean what it says, or the necessities of the case are such as to render the testimony competent notwithstanding the statute, or the privilege accorded by the statute to plaintiff’s wife of suppressing as evidence information acquired by the defendant while attending her in a professional capacity was waived by her and her husband by the institution of this suit, or by the offer of Mrs. Cramer by plaintiff as a witness in the case, the position seems to us to be well taken.
This statute was intended for the protection of the patient against the disclosures of information obtained by a physician in course of his employment as such without the consent of the patient, and in this case unless such evidence was admissible upon the ground of the exigencies of the case, or such privilege was waived by the plaintiff, the evidence objected to was not admissible.
Under the Michigan statute upon the same subject, which is substantially the same as ours, the Supreme Court of that State in construing it in Railroad v. Martin, 41 Mich. loc. cit. 671, said: “The objection that a physician can not reveal with his patient’s consent what he has learned during his treatment, is one which if valid, would render it impossible in either civil or criminal cases to use the'only testimony which would show the nature and extent of disease. The statute is one passed for the sole purpose of enabling persons to secure medical aid without betrayal of confidence. It is
But defendant contends that the necessities of the case are such as to render the testimony of defendant competent. In Henry v. Sneed, 99 Mo. 407" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/henry-v-sneed-8009691?utm_source=webapp" opinion_id="8009691">99 Mo. 407, it was held that plaintiff and his wife might testify as to conversations between themselves as to the transaction in question, as part of the res gestae, and also on the ground of fraud, and this because of the necessity of the matter.
So where a husband, in furtherance of the fraud of others, prevailed upon his wife to sign a note and incumber her property, in the absence of other evidence, and in order to expose the fraud in all its details, it was held that a court of equity would because of the necessity of the matter permit both husband and wife to testify with respect to the conversations had between them in regard to the transaction. [Moeckel v. Heim, 134 Mo. 576" court="Mo." date_filed="1896-06-15" href="https://app.midpage.ai/document/moeckel-v-heim-8012155?utm_source=webapp" opinion_id="8012155">134 Mo. 576.]
"While under the general common law rule Mrs. Henry and Mrs. Moeckel would have been incompetent to testify in these cases, their husbands being their co-parties the rulings in them are justified upon the ground of the matters testified to by them being within their own personal knowledge, and their testimony a matter of necessity. So in the case at bar, the facts to which the defendant was permitted to testify with respect to the condition of Mrs. Cramer, his treatment of her, and the facts obtained from her with respect to her condition were within the exclusive knowledge of her and himself, no other person knew of their own personal knowledge anything about them, and, while it must be understood that such evidence can not be admitted, merely because other evidence of the facts can not be obtained, yet iná suitagainst a physician by the husband for damages, where it is clear that no other person
But it must for the same reason follow that Mrs. Oramer is a competent witness for her husband, notwithstanding at common law as a general rule a married woman is incompetent to testify in behalf of her husband. It may however be said, that because section 8922, Revised Statutes 1889, provides that “no married woman shall be disqualified as a witness in any civil suit or proceeding prosecuted in the name of or against her husband, whether joined or not with her husband as a party” in the cases therein specified, which do not include cases of the kind and character- of the one- at bar, that therefore, the common law rule with respect to the incompetency of a married woman as a witness for her husband in a suit by him, otherwise than in exceptional cases, is still in force. But notwithstanding this statute, and, the common law rule, it was held in both the cases of Henry v. Sneed, supra, and Moeckel v. Heim, supra, that Mrs. Henry and Mrs. Moeckel were competent witnesses.
As was well said by Sherwood, J., in speaking of somewhat similar statutes in Ex parte Marmaduke, 91 Mo. loc. cit. 257: “And being itself a remedial section, giving a testifying capacity where none existed before, and all the sections forming but one system, and being construed together as but
As further illustrative of this rule a married woman was a competent witness at common law for her husband in an action by him against a carrier for the negligent loss of her trunk, with respect to the articles lost, and the value thereof. She is now a competent witness under the statute (sec. 8922, E. S. 1889), in such a case, so far as relates to the loss of property, and the amount and value thereof.
The strict rule of evidence under which as a general rule witnesses are only allowed to testify as to facts is further relaxed in cases of long accounts, or of many books and papers which could not conveniently take place in court, they may testify as to the result of their investigation of the books, and this too although the books are present in court at the time. [1 Greenl. on Evid, (14 Ed.), sec. 93.]
So in Mathias v. O’Neill, 94 Mo. 520" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/mathias-v-oneill-8009228?utm_source=webapp" opinion_id="8009228">94 Mo. 520, it was held that a bookkeeper might testify from seeing certain entries in his handwriting, that he was led to think the facts stated in them were true.
In an article in the January and February number 1900, of the American Law Eeview (volume 34, page 2), entitled Medical Expert Evidence, it is said: “In the reception of proof in judicial investigations, the rule is that witnesses are allowed to testify only as to facts and 'are not permitted to state their conclusions from facts. An exception is made in favor of experts, however, who as Mr. "Wharton well puts it,
So in the case at bar, while holding that both defendant and'Mrs. Cramer are competent witnesses in the casé with respect to the conversations between them in regard to his treatment of her in his professional capacity, and his manner of treatment, what he did, etc., is a departure from the prevailing rule of the law of evidence, we think it is fully justified by the authorities, upon the ground of the necessity of the ease.
If the allegations in the petition are true plaintiff has a cause of action against defendant, but unless Mrs. Cramer is held to be a competent witness and permitted to testify in his behalf, the remedy afforded him by law will fail, and the law should not be so construed as to produce that result.
Moreover, we think Mrs. Cramer is a competent witness in the case on general grounds of public policy, for if it be known that a married woman is a competent witness' for her husband, in a suit for damages by him against a physician’ who produces an abortion upon her without the consent of her husband, in consequence of which her health is injured and he is deprived of her services to which he is entitled by law, and expenses are entailed upon him in her nursing and for> medical treatment, it might to some extent at least put a stop to such revolting .and unnatural practices.
As the knowledge derived by defendant with respect to the condition of plaintiff’s wife was privileged on her part, and which she had the right to waive (Blair v. Railroad, 89 Mo. 383" court="Mo." date_filed="1886-04-15" href="https://app.midpage.ai/document/blair-v-chicago--alton-railroad-8008739?utm_source=webapp" opinion_id="8008739">89 Mo. 383; Thompson v. Ish, 99 Mo. 160" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/thompson-v-ish-8009663?utm_source=webapp" opinion_id="8009663">99 Mo. 160; Davenport v. Hannibal, 108 Mo. 471" court="Mo." date_filed="1891-10-15" href="https://app.midpage.ai/document/davenport-v-city-of-hannibal-8010387?utm_source=webapp" opinion_id="8010387">108 Mo. 471; Groll v. Tower, 85 Mo. 249" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/groll-v-tower-8008268?utm_source=webapp" opinion_id="8008268">85 Mo. 249), it is claimed that, she did waive the protection of the statute by offering herself as a witness in behalf of her husband. But the abstract of
Defendant also contends that the bringing of the suit made public that which the statute intended should be kept secret, and that this was a waiver of the statutory protection and privilege. The privilege in this case was to the wife alone, and could not be waived by the husband or any other person, without authority from her to do so, and there was no evidence in this case that he had any such authority. The institution of the suit by him, had no tendency to show that he had any such authority. Moreover, while the law places no restriction upon her or the defendant as to what they may respectively say to others about what occurred between them during his treatment of her, it prohibits him from testifying in any case to such facts, without her consent, unless such consent be waived by her or some person authorized to do so for her. Now if the suit was by the wife, or by the husband and the wife, against the defendant for physical injury occasioned by his want of knowledge or negligence in her treatment, then the privilege of secrecy on the part of defendant would thereby be waived as to all matters connected with' the case and his treatment thereof (Becknell v. Hosier, 10 Ind. App. 5" court="Ind. Ct. App." date_filed="1894-05-13" href="https://app.midpage.ai/document/becknell-v-hosier-7060790?utm_source=webapp" opinion_id="7060790">10 Ind. App. 5), but that is not this case.
Our conclusion is that the judgment should be reversed and the cause remanded. It is so ordered.