1 S.W. 240 (Mo. 1886), Carrington v. City of St. Louis

Citation:1 S.W. 240, 89 Mo. 208
Opinion Judge:Black, J.
Party Name:Carrington v. The City of St. Louis et al., Appellants
Attorney:Leverett Bell for appellants. O. G. Hess for respondent.
Case Date:June 07, 1886
Court:Supreme Court of Missouri
 
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Page 240

1 S.W. 240 (Mo. 1886)

89 Mo. 208

Carrington

v.

The City of St. Louis et al., Appellants

Supreme Court of Missouri

June 7, 1886

Appeal from St. Louis Court of Appeals.

Affirmed.

Leverett Bell for appellants.

(1) The court erred in permitting Dr. Chase, a dental surgeon, to testify against defendants' objections to information derived by him when treating the plaintiff for injuries complained of in this case. R. S., sec. 4017; Gartside v. Ins. Co., 76 Mo. 446. (2) The circuit court erred in refusing to instruct the jury that there could be no recovery against the city of St. Louis. 2 R. S., p. 1527, secs. 1, 3, 5, 13, 15, 16. The injury that gave rise to this action was sustained at the police station on Ninth and Angelica streets, in the city of St. Louis. The plaintiff fell over an open door leading into the cellar underneath the station house. The door was opened and suffered to remain open by a police officer in charge of said station house, who was making repairs on the same. He was not under the control of the city of St. Louis. The city of St. Louis was forbidden by law from interfering with the policeman, or from altering or changing the station house. The cellar door was open about two hours before the accident. It is not pretended that the city had notice that it was open, or that it had been open for sufficient time to charge the city with notice of the fact. Without one or the other of these facts established, the recovery against the city cannot be sustained. Bonine v. Richmond, 75 Mo. 437. The policeman was not the agent of the city of St. Louis, and his knowledge of the condition of the cellar doors did not charge the city with notice. 2 Dill. Mun. Corp. [3 Ed.] sec. 975. The city is not responsible for the negligence of the board of police commissioners. Atwater v. Baltimore, 31 Md. 462. Nor for the negligence of the policeman, Batte. Elliott v. Philadelphia, 75 Pa. 347. (3) The board of police commissioners is a necessary party defendant in this case. See section 9, of article 16, of City Charter, 2 Revised Statutes, 1626. The plaintiff should have been non-suited under the provisions of this section.

O. G. Hess for respondent.

The first point made by appellants is that the trial court erred in admitting the testimony of E. C. Chase, the dentist. Respondent contends that there was no error in this, because, first: The witness was a mere dentist, and not a physician or surgeon within the meaning of the statute. Brayton v. Chase, 3 Wis. 458: Brown v. Railroad, 66 Mo. 597; Edington v. Ins. Co., 77 N.Y. 569. Second: Even if he was a physician or surgeon within the meaning of the statute, he was not an incompetent witness when called by the patient whom he treated, or, in other words, he was not incompetent because he was called by the party in whose favor his incompetency was created. The privilege of the statute may be waived by the patient. Fraser v. Jennison, 42 Mich. 224; Schrepps v. Foster, 41 Mich. 748; 1 Greenleaf Ev. [12 Ed.] p. 276, sec. 243; Johnson v. Johnson, 14 Wend. 637; Edington v. AEtna Life Ins. Co., 13 Hun, 343...

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