Armstrong v. The Topeka Railway Company

• Decision Date: 12 December 1914
• Docket Number: 19,061
• Citation: 144 P. 847,93 Kan. 493
• Parties: J. B. ARMSTRONG, Appellee, v. THE TOPEKA RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

144 P. 847

93 Kan. 493

J. B. ARMSTRONG, Appellee, v. THE TOPEKA RAILWAY COMPANY, Appellant

No. 19,061

Supreme Court of Kansas

December 12, 1914

Decided July, 1914.

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRIVILEGED COMMUNICATIONS--Constructon of Statute. Statutes in derogation of the competency of witnesses will not be enlarged by implication or interpretation, but will be strictly construed in favor of competency.

2. SAME--Statute Not Remedial but Merely Grants a Privilege. The statute rendering physicians and surgeons incompetent to testify to certain communications made to them by their patients is not remedial in any proper sense of the term, but merely grants a privilege to persons in a specified relation, if they see fit to take advantage of it.

3. SAME--Nature of Communications Included in Statute. Section 323 of the civil code, relating to privileged communications to physicians and surgeons with reference to physical disease, was amended in 1909 (new code, § 321), to include communications respecting physical defects and injuries, and the time, manner and circumstances under which ailments were incurred. The time, manner, and circumstances of, for example, a street-car accident resulting in injury to a passenger are not confidential in their nature, there being no secrecy, or intimacy, or privacy about them. They may be classified as confidential only because associated with or incident to confidential matters, and the statute is to be interpreted as including such facts merely for the protection of genuinely confidential subjects.

4. SAME--Physician May Testify with Consent of Patient. A physician may testify to confidential communications with the consent of his patient. The giving of testimony by the patient without objection is by statute made the equivalent of consent that the physician may testify to the same subject matter, whether the patient be willing in fact or not. Be sides this statutory consent, consent may be express, as, for example, by contract. Consent may also be implied. It is implied from failure to make objection when the physician is called upon to testify, assuming that the patient has opportunity to make objection.

5. SAME--Patient May Waive His Privilege Under the Statute. Under the facts stated at length in the opinion it is held that the plaintiff, who claimed to have been injured by being violently thrown from a moving street car because of a sudden jerk and starting of the car, and who was attended by a number of physicians, waived his right to have his communications to them respecting the manner and circumstances of his injury regarded as privileged. Held, further, that since the plaintiff has waived his privilege it no longer exists, and will not be a factor in subsequent proceedings in the case.

Leonard S. Ferry, Thomas F. Doran, and John S. Dean, all of Topeka, for the appellant.

Edwin E. Brookens, and Edwin D. McKeever, both of Topeka, for the appellee.

OPINION

BURCH, J.

The plaintiff sued the defendant for damages resulting from personal injuries which he alleged he sustained through the negligent operation of one of the defendant's street cars. The plaintiff recovered and the defendant appeals.

The petition alleged that the plaintiff was thrown violently from a slowly moving car on which he was a passenger because of the fact that the motorman suddenly started the car just as it was about to stop at the plaintiff's destination, and just as he was about to alight from it, but before he had succeeded in doing so. The plaintiff, who is a physician, testified as follows:

"Q. Now, you may state just what happened? A. Well, when I got to the Rock Island depot, I passed right in through the car and went around the part where the conductor stands. Just as I went by I said, 'Next crossing,' and he jerked the cord, and I went around and stepped right past him and down on the step, standing on my left foot, holding to that rod, and the car was coming down real slow and slipped my foot along, probably within three or four inches of the pavement, expecting to get off just when it stopped, and it was just a little, possibly, past the McCord-Kistler Grocery Company and the car suddenly--the motorman gave it a couple of jerks and the car started forward, and I had my obstetrical grip, and it threw me around backward and I lighted solid on my heels, and at the same time felt as though some real sharp instrument had struck me in the small of my back."

The grip which the plaintiff carried weighed about twenty-five pounds. He was not thrown down. The occurrence did not attract the attention of the conductor of the car or, so far as known, of any one else, and the plaintiff alone was aware that the incident included features which distinguished it from the commonplace stepping from a slowly moving street car.

The incident which the plaintiff described occurred on Saturday morning, August 3, 1912. On Monday the plaintiff requested Doctor Bowen to treat him for lumbago, which he supposed he had as the result of a wrench of his back, and he went to Doctor Bowen's office for that purpose. He was met there by Doctor Kiene, who was able to afford him some temporary relief. On Tuesday the plaintiff again called at Doctor Bowen's office, where he was treated, and Doctor Bowen then took the plaintiff to his home in North Topeka. The plaintiff remained at home, suffering great pain and in a paralyzed condition, for some three weeks, when he was taken to Kansas City, Mo., for treatment by Doctor Grover Burnett. He remained at Kansas City four weeks, and at the end of that period, his condition having improved somewhat, he returned to Topeka. From the time the plaintiff was taken to his home by Dr. Bowen he was under the care of his regular physician, Doctor Sams. Because of the puzzling character of the case many other physicians were called to see the plaintiff, and came to see the plaintiff. Doctor Bowen called in Dr. W. S. Lindsay, a specialist in nervous diseases, who afterwards gave much attention to the case. Before the trial he and Doctor Porter, a member of the staff of the St. Francis Hospital, were appointed by the court to examine the plaintiff and report upon his condition. Doctor Lindsay called Doctor Milne, a specialist of Kansas City, Mo., and also took his son, Dr. Merrill Lindsay, to see the plaintiff. Doctor Sams called Doctor Burnett, who came from Kansas City to visit the plaintiff some four or five days after his injury. Doctor Johnson, of Topeka, was present on this occasion, at whose request does not appear. Doctor Joss, and perhaps some other physicians of the city called to see the plaintiff for the purpose of observing his condition, both as a matter of interest to themselves and for the purpose of lending assistance if they could.

At the trial the plaintiff was the first witness examined. Besides giving the testimony which has been quoted, the plaintiff gave a full account of his case, including a detailed description of his physical condition, of the nature and progress of his disease, of the methods of examination employed by some of the physicians who attended him, and in part of the treatment he received. Besides this, as a medical expert, the plaintiff attributed his disorder to a hemorrhage of the spinal cord, caused by the wrench and shock which he received when he struck the pavement on his heels after having been thrown violently from the defendant's car.

On cross-examination the plaintiff was asked if he had not given an account of how he was injured to Doctors Kiene, Bowen, Sams, Lindsay, Merrill Lindsay and Milne. He admitted having given a history of his case to Doctors Kiene, Bowen, Sams and Lindsay. He was quite certain he had not stated the facts to Doctor Milne, but was not certain that Dr. Merrill Lindsay had not heard him do so. Sometimes, but not always, objections were interposed to the questions asked, on the ground that they called for privileged communications, and the substance of some of the conversations was given, partly without objection and partly over objection.

At the conclusion of the plaintiff's testimony his wife was called to prove his previous robust health. The plaintiff's last witness in chief, Doctor Burnett, was then called.

Doctor Burnett testified to coming to Topeka to see the plaintiff and to a personal examination of the plaintiff at his home to ascertain the nature and cause of his malady. The facts disclosed by this examination were stated in detail. In answer to a hypothetical question, the witness gave an opinion coinciding with the opinion which the plaintiff himself had expressed as to the traumatic origin of the plaintiff's paralysis. On cross-examination the witness amplified his statement of the knowledge of the plaintiff's physical condition which he had gained by personal examination. He further testified that his opinion was based not only upon his personal examination of the plaintiff, but also upon the history of the case which he had received from the plaintiff and Doctor Sams, and he gave reasons why the history of the case was important in this instance. After his opinion had been withdrawn from the consideration of the jury and after he had again been qualified, he changed the basis of his opinion to conform to the ruling of the court, and said he rested his opinion, which remained unchanged, on the condition in which he found the plaintiff.

The witness received the history of the case when he first examined the plaintiff on the occasion of his visit to Topeka. He remembered that Doctor Sams, Doctor Johnson, and Doctor Bowen were present at the time. He did not remember...