124 Minn. 466 | Minn. | 1914
Plaintiff brought suit for personal injuries and recovered a verdict. Defendant made an alternative motion for judgment notwithstanding the verdict or for a new trial and appealed from the order denying the motion.
The accident occurred on the evening of June 26, 1912, at defendant’s ice house in the city of West Superior, Wisconsin; and the action is based upon the statutes of the state of Wisconsin.
Plaintiff and several other employees of defendant were engaged in taking ice from the ice house and loading it upon cars. They made use of a chute which reached from the floor of the ice house to a platform outside. Plaintiff pulled the cakes of ice to the foot of the chute, then placed a pair of ice tongs in position, and the other employees drew the ice up the chute to the platform by means of a rope attached to the tongs. While plaintiff was placing a cake of ice in position at the foot of the chute, another cake which was
The Wisconsin law provides that if the company and the employee were both negligent, but the negligence of the company was greater than that of the employee and contributed in a greater degree to the injury, the employee is entitled to recover. The questions as to the negligence of defendant, as to the contributory negligence of plaintiff, and as to the comparative negligence of plaintiff and defendant, were correctly submitted to the jury, and their conclusion upon these questions is amply supported by the evidence.
Defendant contends that instructions given the patient and his attitude and conduct as to obeying them are not within the inhibition of the statute; that the information sought was not communicated in confidence; and that plaintiff had waived his privilege, and for these reasons insists that the exclusion of the testimony of the physicians was error. We think the ruling was correct. Although a physician may testify to the fact that he has attended a person professionally, the statute seals his lips as to all information acquired in consequence of his professional employment, and necessary for the proper performance of his professional duties. Price v. Standard Life & Accident Ins. Co. 90 Minn. 264, 95 N. W. 1118. His instructions are given in the performance of professional duties, and knowledge of the manner in which they are observed might have an important bearing upon his subsequent treatment. The statutes of different states vary materially and the statutory privilege is sometimes restricted to communications made by the patient. It is obvious that decisions based upon statutes essentially different from our own are not in point. Our statute does not limit the privilege to communications made by the patient, nor to information imparted in confidence; but extends it to all information acquired by the physician in his professional capacity and necessary to enable him to act properly.
Defendant bases its claim that plaintiff had waived his privilege upon the ground that he brought suit to recover for the injuries for which the doctors had treated him; that he himself had testified as to these injuries; and that he had called other physicians to testify as to the consequences resulting from these injuries.
The authorities hold that the bringing of an action, unless it be against the physician himself for malpractice, is not a waiver of the privilege. The testimony of the physicians called as witnesses by plaintiff was confined to the information acquired by their own examination made shortly before the trial and after the leg had healed. Plaintiff himself testified concerning the manner in which the injury
In support of its proposition as to waiver defendant relies largely upon Wigmore on Evidence. This erudite author discusses the underlying principles which govern such matters, and, in his usual trenchant style, asserts that the law ought to be substantially as contended for by defendant, but frankly admits that such is not the law at the present time. We give much weight to his masterly work, but must apply the law as we find it and leave the modification of the statute to the law-making power. As said in Hilary v. Minneapolis Street Ry. Co. supra: “Mr. Wigmore gives some excellent reasons why the statute might he modified. Wigmore, Ev. §§ 2380-2389. But the statute has been of long standing, has generally been liberally construed, and, although there seem to he strong reasons why it might be modified so as to permit physicians to testify upon such occasions as this, the wisdom of making a change should be left to the legislature.”
We find no prejudicial error in the record and the order appealed from is affirmed.