Chicago, I.&L. Ry. Co. v. Gorman

• Decision Date: 07 April 1911
• Docket Number: No. 7,192.,7,192.
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. v. GORMAN.

47 Ind.App. 432

94 N.E. 730

CHICAGO, I. & L. RY. CO.

v.GORMAN.

No. 7,192.

Appellate Court of Indiana, Division No. 2.

April 7, 1911.

Appeal from Circuit Court, Orange County; Thomas B. Buskirk, Judge.

Action by John Gorman against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. C. Field, H. R. Kurrie, and W. J. Buskirk, for appellant. Perry McCart and Hottel & Hottel, for appellee.

IBACH, J.

Appellee recovered damages against the appellant for injuries sustained by reason of one of its freight trains colliding with him as he was attempting to pass over the company's tracks in a wagon at a crossing over a highway in Orange county, Ind. The amended complaint is in three paragraphs. The first paragraph seeks damages for loss of personal property; the second on account of personal injuries sustained; and the third on account of both the loss of personal property and personal injuries. Each of said paragraphs is based upon the alleged negligence of the appellant in failing to give the statutory signals when the train which ran against appellee was approaching the crossing, described in appellee's complaint. The cause was put at issue and a trial resulted in a verdict in favor of appellee. In connection with the verdict, the jury answered a number of interrogatories. Appellant moved for a judgment in its favor upon the answers to interrogatories. The motion was by the court overruled, and over appellant's motion for a new trial judgment was rendered on the verdict.

The errors assigned and relied upon for reversal are the overruling of appellant's motion for judgment upon the answers to the interrogatories, notwithstanding the general verdict, and for a new trial. Our conclusion renders it necessary to consider only the latter.

[1] The ninth specification for a new trial relates to the correctness of the trial court in excluding the testimony of the witness Dr. Perkhiser, with reference to a conversation sought to be proved between himself and plaintiff as to the manner in which plaintiff'sinjuries were received. The offer to prove shows that he would have testified that plaintiff told him, after the accident, that he heard the train coming, but thought he had time to get over. This testimony was clearly relevant to the issues, and the questions asked of the witness tended to develop competent matters, and, if erroneously excluded, this was reversible error.

[2] “At common law confidential communications made by a patient to a physician were not privileged. The common law in this state has been changed by statute.” Springer v. Byram, 137 Ind. 21, 36 N. E. 362, 23 L. R. A. 244, 45 Am. St. Rep. 159; section 520, Burns' St. 1908.

It is urged by appellee that the relation of physician and patient existed between the witness and the plaintiff, and, for that reason, the testimony was privileged. The evidence discloses that the witness was a surgeon of the railway company at that time; that the witness told plaintiff he was requested by the station agent to visit him, and make an examination so that he could make the ordinary report as surgeons are required to make to the company in cases of that kind; that he was there for the purpose of making an examination as the physician of the defendant railway company to make his report to the railway company, and that he did make an examination as such physician of the said company, but that witness did not prescribe for plaintiff, and had nothing to do with the case as to treatment. It is evident that his visit was purely on a business matter, and not in a professional capacity, and that appellee so understood the purpose of his call. “When a third person employs a physician to examine a person for the purpose of acquiring information for the use of such third person, the relation does not exist between the physician and the person examined, which makes the information obtained by the physician confidential.” 10 Encyc. Evidence, p. 112.

In Battis v. Chicago, etc., R. Co., 124 Iowa, 623, 100 N. W. 543, in a personal injury case, the court say: “It may be conceded that the sole purpose of the agent in calling the physician was that the latter might ascertain the condition of the plaintiff, and thus be prepared to advise the company, should occasion therefor arise, or be a witness in its behalf, if necessary. Certainly, if the visit of the physician had been confined to the limits of such purpose alone, his eligibility as a witness on behalf of the company might not be open to question. Without doubt, a railway company, with the utmost propriety, may thus advise itself of the fact of an injury, and the character and extent thereof, in anticipation of a possible claim against it for damages, and, with that end in view, it may send a physician to inspect and take notes, or otherwise inform himself of existing conditions. But this can avail the company nothing unless the physician shall strictly retain his character as an employé of the company. If, upon request, or upon his own motion, he assumes to advise or administer treatment to the patient, and the latter in any manner acquiesces therein, the physician thereby casts aside his relation as an employé of the company, and transfers his allegiance to the patient. In such instances a case is presented where one cannot serve two masters at one...