Lead Opinion
delivered the opinion of the court.
This case was affirmed by this, court in an opinion reported in Yazoo & M. V. R. Co. v. Messina,
“This is an action for personal injuries suffered by the defendant in error while upon a train running from Mississippi to Tennessee. He had paid no fare, but was upon the tender, as he said, by permission of the engineer. The engineer had notice that the water was high bеtween Beatty and Sawyer, and over the track at Sawyer. After passing Beatty the train was going at a rate variously put as thirty-five to fifty or sixty miles an hour when it ran into the water and was thrown from the track. The plaintiff was caught between the tender and a car and badly hurt. The plaintiff got a judgment for. ten thousand dollars, whiсh was sustained by the supreme court. At the trial the jury were instructed that the defendant railroad was presumed to be negligent, and that if the evidence left it doubtful it was their duty to find full damages for the plaintiff. The judge refused to instruct them that the engineer had no authority to permit the plaintiff to ride on the train ‘ at the place he was in’, but the request for this instruction was based upon the company’s rules, not upon the act to regulate commerce. The supreme court, however, discussed the act of Congress and held that it did not apply to the case.
“By section 1 of the act [U. S. Comp. St. 1913, sec. 8563], as amended by Act June 29, 1906, ch. 3591, 34 Stаt. 584, and still in force, any common carrier violating the provisions against free transportation is guilty of a misdemeanor and subject to a penalty, and any person other than those excepted ‘who' uses any such interstate
It is contended by appellant that, in obedience to the opinion of the supreme court of the United States, it is the duty of this court to reverse and remand the cаse to the circuit court for a retrial, or to reverse the judgment of the circuit court and dismiss the cause here. We do not agree with appellant in regard to the situation. We are now advised by the supreme court of the United States that we erred in the interpretation of the Federal statute, and as the case stands now it is authoritatively established that appellee violated the law when he accepted a free ride, and with this situation it is left to this court to apply the state law and decide whether or not he is entitled to recover in this action.
The McLaurin Case and the present case are clearly distinguishable. • In the McLaurin Case the plaintiff’s own immoral acts were the cause of his injuries. The
If we take thе facts of the instant case, and assume that the Federal statute was not in existence when the injury was inflicted, or if we assume that the train was engaged in intrastate commerce, it is sure that plaintiff would have suffered all the agonies he did suffer. In other words, the violation of the law did not cause or contribute to the damages. To illustrate: It may be a moral wrong to pick cotton on Sunday, and it is a violation of the law so to do; but no one would contend that a defendant could plead in bar or in extenuation of an action for an assault and battery that he and the plaintiff were violating the Sunday laws, when defеndant made the assault on plaintiff, by jointly engaging in the job of picking-the cotton.
In the McLaurin Case, the plaintiff proved that defendant did wrong, but he did not prove that defendant’s wrong damaged him; he merely proved that he had erred and because of his error, coupled with the incidental fact that his wrongs were discovered, he suffered humiliation аnd damage. The cause of McLaurin’s damage was his own wrongdoing, while the cause of the plaintiff’s damages in this case was the reckless operation of defandant’s train, and plaintiff’s injuries were not caused or increased by the violation of the law. We tried to make
The supreme court of the United States has set us right upon the Federal statute and its application to the facts of this cause, and now, realizing our former error, we nevertheless are unable to discover any reason for changing the judgmеnt heretofore entered in this cause. We see now that the act of Congress was violated, but we affirm the judgment of the circuit court, and, doing so, we believe that we are not out of harmony with the decision of the supreme court of the United States.
Affirmed.
Concurrence Opinion
(concurring). Appellee’s presence on the train on the occasion in question was not the cause of his injury, but was merely a condition thereof, without the existence of which he could not have been injured. That he was aboard the train in violation of a statute does not change the situation. His presence thereon, though unlawful, was still simply a condition, and not the cause, of his injury; and, as I understand the law, the rule is that no act of a party injured, whether carefully or negligently, lawfully or unlawfully done, which is merely a condition, and not a contributing cause, of his injury, will bar a recovery therefor. Appellee did not for the time being forfeit all right to the protection of the law against injury to his person merely because, at the time he was injured, he was engaged in the commission of a criminal
An examination of the opinion in Western Union Telegraph Co. v. McLaurin,
Dissenting Opinion
(dissenting). I am compelled to withhold my assent to the majority opinion. I have nо fault to find with the manner in which' the court discriminates the McLaurin Case from the case at bar. The judgment of this court heretofore rendered, affirming judgment of the trial court awarding plaintiff damages, has been reversed and completely set aside by the supreme court of the United States, and the case nоw stands open on all questions properly presented on the record. I feel reluctant to criticize either the reasoning or the conclusions of this court on the various assignments of error disposed of by the first opinion of this court [Yazoo & M. V. R. Co. v. Messina,
Appellant, as defendant in the court below, comрlains of the exclusion of the testimony of Drs. Trotter, Baskerville, and Baxter, certain physicians called to administer first-hand relief to those injured in the wreck. These physicians and surgeons waited upon and had charge of plaintiff immediately after the wreck and for some time thereafter. The plaintiff by his deсlaration not only complained of the alleged gross negligence of the railroad company causing the wreck, but by a separate count
I shall not here discuss what is or is not a privileged communication under section 3695 of our Code. The case here presented is one where the attending physicians called at the instance of the railroad company were not permitted to rebut the evidence of plaintiff’s own physician as to the extent of the injuries, or to rebut the proof of plaintiff tending to show that he was neglected. The communications that are held privileged and sacred by our statute may, by the express language of the statute itself, be disclosed “at the instance of the patient.” When the patient, therefore, comes into court seeking damages for the very injuries which the physicians attended, and the plaintiff, to establish the fact of these injuries and the extent thereof, introduces his own physician, he should be held to have waived the privilege guaranteed to him by the statute, and to put in issue the very thing which the statute says shall not be disclosed, except at his instance. The right accorded by the statute manifestly can be waived, and it is contrary to justice to hold that the plaintiff mаy call his chosen physician to flash before the éyes of the jury a picture of plaintiff’s suffering and injuries, without at the same time according to the defendant the right to rebut this testimony by the same kind and character of evidence, viz., expert or professional testimony of the very physicians who saw, examinеd, and bound up the very wounds which plaintiff’s
“One injured in a railroad wreck, who, in a suit to recover damages for the injuries, testifies as to the injuries and the treatment given him, and calls his own physician to testify as to such injuries, waives the provision of the statute making incompetent as a witness a physician or surgeоn concerning information acquired from a patient while attending him in a professional character, and other physicians who treated him for such injuries at the time of the accident may therefore testify as to their extent and the treatment given.”
Mr. Wigmore observes that:
“A waiver is to be predicated, not only when the cоnduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield. ’ ’ Wigmore on Evidence, par. 2388.
But I forego further discussion of the authorities on this interesting point. I have discussed the question to some extent, in order not to be held committed to the con elusion heretofore reached by this court on that point.
But my objection to the conclusions reached by the majority opinion goes deeper. The first opinion of this court really placed the plaintiff in the attitude of a licensee.. He was riding on the tender, not only with the knowledge of the engineer, but by the express permission
As a matter of fact, the plaintiff has no case, and in ■ view of the holding of the supreme court of the United States his action should now be altogether dismissed, at his cost.