129 P. 1048 | Or. | 1913
delivered the opinion of the court.
“All persons without exception, except as otherwise provided in this chapter who having organs of sense can perceive and perceiving can make known their perceptions to others may be witnesses. * * ”
In Section 733, L. 0. L., it is stated that—
“There are particular relations in which it is the policy of the' law to induce confidence and to preserve it inviolate ; therefore, a person cannot be examined as a witness in the following cases: * * (4) A regular physician or surgeon shall not without the consent of his patient be
In Section 734 it is provided that—
“If a party to the action, suit or proceeding offer himself as a witness that is to be deemed a consent to the examination of a wife, husband, attorney, clergyman, physician or surgeon on the same subject within the meaning of subdivisions 1, 2, 3, and 4 of the last section.”
It is only by virtue of the statute that the testimony of an attending physician or surgeon relating to the physical condition of his patient is excluded, for at common law the medical man was required to testify practically the same as any other witness. Pierson v. People, 79 N. Y. 424, 432 (35 Am. Rep. 524); Winters v. Winters, 102 Iowa, 53, 57 (71 N. W. 184: 63 Am. St. Rep. 428). In re Young’s Estate, 33 Utah, 382 (94 Pac. 731: 17 L. R. A. [N. S.] 108: 126 Am. St. Rep. 843: 14 Ann. Cas. 596). Originally privileged communications were limited to those between an attorney and client, and many statutes have been passed in the various states extending this rule, to physician and patient. Some enactments impose this restriction without any qualification. Others make an exception where the patient shall definitely waive the privilege or give an express consent. Under laws of the latter sort, the authorities are not in accord on the subject of what shall be deemed a consent to the examination of the attending physician. Some hold that there must be an express waiver at the time of the trial. Such a case is Western Travelers’ Accident Association v. Munson, 73 Neb. 858 (103 N. W. 688: 1 L. R. A. [N. S.] 1068); also Met. St. Ry. Co. v. Jacobi, 50 C. C. A. 619 (112 Fed. 924). Others, like Hunt v. Blackburn, 128 U. S. 464 (9 Sup. Ct. 125: 32 L. Ed. 488), hold that a party testifying on the subject himself must be held to have waived the privilege
“The proponent, having voluntarily gone upon the stand a§ % witness upon the general subject, waived the right in any event to the examination of Judge Phelps.”
. “In actions at law * * the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any court of this State unless the court can affirmatively say there is no evidence to support the verdict. * * ” L. O. L. xxiv.
The constitution, as so amended, does not purport or intend to change the signification of the term “trial by jury,” as it has been known ever since the birth of constitutional government in this country. On the contrary, it expressly preserves that time-honored institution. A verdict that is immune from re-examination except for an entire want of evidence is not any and every decision that may be reached by a body of 12 men who happen to sit in a jury box and hear the testimony in the presence of a court, but it means one reached under the forms of law as prescribed for a jury trial within the meaning of the constitution from the beginning. In State v. Rader, 62 Or. 37 (124 Pac. 195), Mr. Justice McBride, in construing this section said:
“But for the jury to find the fact the court must see that they receive only legal evidence and no good finding of fact can ever be predicated upon illegal evidence.”
It is equally true that the suppression of legal evidence will.vitiate a verdict. An invulnerable verdict must be