119 Cal. 442 | Cal. | 1897
The plaintiff recovered a verdict against the defendant for personal injuries sustained by the fall of an elevator in which he was at the time a passenger. From the judgment thereon and an order denying a new trial the defendant has appealed. It is alleged in the complaint that the defendant operated and controlled the elevator, and that the same was wholly under its management and control, and was maintained by it for the purpose of carrying passengers to and from the different floors of the defendant’s building; that at the time the injury occurred the plaintiff entered it to be thus carried, and the defendant undertook to transport him from the first to the fourth
1. At the trial a witness on behalf of the plaintiff was permitted, against the objection of the defendant, to give a conversation which he had had with the man in charge of the elevator. His testimony was: “I asked him what in the world happened. He said he lost all control, and the connection cord got broke.” This conversation was had after the elevator had' stopped in its fall, and after the plaintiff had been taken out of the cage, and formed no part of the res gestae and should have been excluded by the court. It was only a statement of what had occurred, and the defendant was not bound thereby. In Lane v. Bryant, 9 Gray, 245, 69 Am. Dec. 282, the plaintiff was injured in a collision between his carriage and that of the defendant, and a witness was asked what the defendant’s servant said to the plaintiff at the time of the accident, and while the plaintiff was being taken out of the carriage, to which he replied that the servant said that the plaintiff was not to blame. In holding that this evidence was improperly admitted, the court said: “The declaration of the defendant’s servant was incompetent, and should have been rejected. It was made after the accident and the injury to the plaintiff’s carriage had been done. It did not accompany the principal act on which the whole case turned, or tend in any way to elucidate it. It was only the expression of an opinion about a past occurrence and no part of the res gestae. It 13 210 more competent because made immediately after the accident than if made a week or a month afterward.” (See, also, Richstain v. Washington Mills Co., 157 Mass. 538; Beasley v. San Jose Fruit Packing Co., 92 Cal. 388; Fetter on Carriers of Passengers, sec. 454.) It cannot he said that this was an immaterial error. The evidence was incompetent, and, being of a character tending to charge the defendant with negligence, it is impossible to say what effect it may have had upon the jury. A party cannot, after insisting upon the admission of improper evidence over an objection to its admissibility, defend his course by contending that the error was harmless. (Smith v. Westerfield, 88 Cal. 374.)
In this ruling the court erred: Section 1881 of the Code of Civil Procedure, subdivision 4, provides: “A licensed physician or surgeon cannot, without the consent of his patient, be examined in any civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.” When Dr. Spencer was called as a witness the plaintiff had the right to object to his testifying upon the matters named in this section, or he could consent to his being examined in reference thereto. The privilege given by the statute is personal to the patient, and may be waived by him. It is waived when he calls the physician himself as a witness, or when he permits him to give his testimony without making any objection thereto. If the patient once consents to his testifying, he cannot, after the testimony has been given,
3. The defendant demurred to the complaint upon the ground
The judgment and order denying a new trial are reversed, and the cause remanded with leave to the plaintiff, if he shall be so advised, to amend his complaint.
Garoutte, J., and Van Fleet, J., concurred.