171 Ind. 686 | Ind. | 1908
This action was brought by appellee to recover damages for personal injuries caused by being struck
The complaint was in three paragraphs, the first and second paragraphs allege that appellee was injured by the negligence of appellant in running said train, the third paragraph charged a wilful injury of appellee. The cause was commenced in the Superior, Court of Marion County, and twice tried in that court, the first trial resulting in a disagreement of the jury.
At the close of the evidence on the second trial of said cause, appellee withdrew from the jury the first and third paragraphs of the complaint, thereby dismissing the same. The jury returned a verdict in favor of appellee, which was set aside and a new trial granted by the court on motion of appellant.
•The venue of the cause was afterward changed, on motion of appellee, to the court below, where the trial resulted in a verdict, and, over a motion for a new trial, judgment in favor of appellee.
The only error assigned calls in question the action of the court in overruling appellant’s motion for a new trial.
It appears from the record that appellee was taken from the place where he was injured to St. Vincent’s Hospital in Indianapolis, where Dr. John H. Oliver, surgeon of appellant, attended him.
On the first trial of the cause in the Superior Court of Marion County, Doctor Oliver was called and examined as a witness by appellee, and “testified relative to what he learned at the. time he was called 'to see appellee at the hospital,” and concerning “the intoxication of appellee at that time. ’ ’
On the trial in the court below appellant called and examined said Doctor Oliver as a witness. During said examination appellant offered to prove by said witness, in response to a question propounded to him, “that he was called to see
In McKinney v. Grand St., etc., Railroad, supra, the plaintiff sued the railway company to recover damages for per.sonal injuries, and upon the first trial of the action she called the attending physician, who testified concerning her physical condition learned by him while attending her, but upon the second trial, when the same witness was called by the railway company to testify to the same facts, his evidence, on objection of the plaintiff, was excluded. On appeal to the court of appeals, that court held that the evidence should have been received, and that its exclusion was a reversible error. The court in discussing the question said on page 354: “Such evidence is made incompetent at the option of the patient only, and in case she elects at any time to remove the seal from the lips of the witness, the evidence may properly be received. The intent of the
In Clifford v. Denver, etc., R. Co., supra, Morris v. New York, etc., R. Co., supra, Green v. Crapo, supra, and Elliott v. City of Kansas City, supra, the case of McKinney w Grand Street, etc., Railroad, supra, is cited with approval.
In Morris v. New York, etc., R. Co., supra, it was held that a plaintiff could not sever her privilege, waiving it in part and retaining it in part; that when she waived the privilege it ceased to exist. Having once consented to and acquiesced in the uncovering and making public what before was private and confidential, said confidence is renounced entirely, and the waiver cannot be recalled. The information is open to the public, and the patient is no longer privileged to forbid its repetition. After the information has been made public by waiver of the patient, no further injury can be inflicted upon such rights and interests of the patient as the statute was intended to protect by the repetition of the information.
Clifford v. Denver, etc., R. Co., supra, was an action against the railroad company for personal injuries. After issue was joined in said action, plaintiff caused a commission to be issued for the examination, as a witness in her behalf, of the doctor who treated her when she was injured. Interrogatories prepared by her counsel and cross-interrogatories prepared by the counsel for the defendant railroad company were annexed to the commission, which was duly executed and returned. The plaintiff rested her case without reading any part of the testimony of her physician thus taken, but, when the case was with the defendant, its counsel offered the deposition in evidence, and was permitted to read the part thereof which showed that the witness was a physician and surgeon and that he attended the plaintiff for four or five days while she was in the hospital on account of the injury sued for. The rest of the deposition was objected to by plaintiff and excluded a's incompetent, be
■On appeal it was held that the trial court erred in excluding said deposition, and the ease was reversed for that reason. The court said on page 357: “The object of section 834. is to prevent the disclosure of delicate and confidential matters, which might humiliate the patient in his.lifetime and disgrace his memory when dead, so as to enable him, to consult a physician in safety, knowing that his lips would be sealed by the law until he, himself, removed the seal.,, When, however, the patient forces the physician to tell all he knows upon the subject, and thus publishes to the world all that he might have kept secret, he no longer needs the protection of the statute and withdraws himself from the spirit of the prohibition. That is the logical and necessary effect of such an act, and if the legislature had intended to prevent that result we think it would have said so in specific terms. * * # The amendment of 1899 must be read in the light of the object of the statute which was to prevent the disclosure of a patient’s secrets against his will, not to interpose an obstacle to the administration of justice by suppressing facts already made public by the patient himself in a legal proceeding. The legislature did not intend to allow a party to cause a record to be made and filed in a public office in which the testimony of his physician, taken at his instance, is set forth at large, stating confidential facts material in a eontrovei’sy with another party, and then to prevent that evidence from being read before the jury by advancing as his only objection that it would divulge private matters. The language of the section limiting waivers .to such as are made in open court on the trial of an action or by the stipulation of the attorneys for the respective parties should be so construed as to promote, not to defeat the purpose of the statute. While there is no doubt that the examination of a witness under a commission cañnot be regarded for all purposes as part of the trial, still the taking of testi
In Schlotterer v. Brooklyn, etc., Ferry Co., supra, the physician was called by the defendant, and there was no objection to his testifying made by the plaintiff, on the ground of his being disqualified to disclose any privileged communications. Subsequently in an action by the same plaintiff against the same defendant to recover damages for injuries due to the same accident, said physician was again called as a witness by the defendant. The plaintiff interposed an objection on the ground of priviléged communication. The objection was sustained by the trial court, and the evidence excluded. This actiou of the trial court was held erroneous on appeal. The court said on page 509: “I think that
In Lissak v. Crocker Estate Co., supra, ’the supreme court of the state, in discussing the doctrine of a waiver of privilege conferred by the code (Code of Civ. Pro., §1881), which provided that ‘ a licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient,” said: “When Doctor Spencer was called, 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, revoke the consent and ask to have it excluded. Such consent may be either implied or expressed, and there was in the present instance an implied consent when the plaintiff permitted the witness to be examined in full by the defendant without any objection.”
In Green v. Crapo, supra, the supreme court of Massachusetts, in discussing the question of the admission in evidence of a privileged communication between attorney and client, said on page 62: “Of course the appellant’s communications with him while he was her counsel were privileged, but they were unimportant and it appeared that the privilege was waived in the probate court. Nevertheless the objection was urged when the ease came to be tried before the justice of this court, and an exception was taken,when he ruled that the privilege having been waived could not be insisted upon before him. We do not think it necessary to
The ease of Elliott v. City of Kansas City, supra, was an action against the city to recover damages for personal injuries. On the first and second trials of said cause the city called as a witness the physician of the plaintiff, who testified as to his treatment of the plaintiff, and her physical condition. Plaintiff made no objection to this testimony. On the third trial the city again called said witness, and offered to prove the same facts as on the former trials. The court excluded said evidence on the objection made .by plaintiff that “this witness obtained the information asked for while attending and treating her as her physician, and the same was therefore privileged.” The court on appeal held that the trial court erred in excluding said' evidence. In discussing the question it said on page 607: “Upon this proposition the expressions of the courts having the. question in judgment before them are almost uniform that the purpose sought by the prohibition contained in the statute against disclosing professional information, is for the purpose of allowing greater freedom between-the physician and patient, and was enacted as a matter of public policy to confer upon persons, seeking the services of a physician, a personal privilege, and closing the door to the sick room and preventing his publishing to the world their infirmities. That this personal privilege may be waived all authorities agree. It is equally well settled, as was said in Fox v. Union Turnpike Co. [1901], 59 Hun, App. Div., 363, 69 N. Y. Supp. 551, that ‘when a patient voluntarily opens the door of the consultation room and gives a view that may have been specially
Under this rule instruction twenty-nine, given by the .court and complained of by appellant as to the kind of proof by which contributory negligence must be shown, was, to say the least, misleading, and therefore erroneous.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.