Battis v. Chi., R. I. & P. Ry. Co.

• Citation: 124 Iowa 623,100 N.W. 543
• Court: United States State Supreme Court of Iowa
• Decision Date: 13 July 1904
• Parties: BATTIS v. CHICAGO, R. I. & P. RY. CO.

124 Iowa 623

100 N.W. 543

BATTIS

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Wayne County; H. M. Towner, Judge.

Action to recover damages for a personal injury. It is claimed by plaintiff that on the night of September 29, 1899, he was a passenger on one of the defendant's passenger trains, and that when between Seymour and Harvard, in Wayne county, and while the train was running at full speed, he was forcibly and without cause put off the same by the train brakeman; that, when so put off, he fell to the ground with great violence, and sustained injuries to his head, face, and back, as a result of which he has incurred expense for medical attendance, and suffered great physical pain and mental anguish, and has been prevented from performing any kind of manual labor. The answer of the defendant is a general denial. There was a jury trial, resulting in a verdict and judgment for plaintiff. The defendant appeals. Reversed.

Deemer, C. J., and Weaver, J., dissenting.Carroll Wright, J. I. Dille, and Miles & Steele, for appellant.

R. C. Poston and Freeland & Evans, for appellee.

BISHOP, J.

While upon the witness stand, plaintiff testified that he reached his home, in Allerton, about 5 o'clock the next morning after the occurrence in question. Thereafter his wife was called as a witness on his behalf, and was asked what, if anything, her husband said when he first came home with reference to suffering pain on account of his injuries. This was objected to, and the objection overruled. The witness answered that he requested to be helped to bed as quickly as possible; that “he complained of pain in his head, in the back of his neck, and in his arms. He said he was suffering lots of pain.” The admission of such testimony is assigned as error. We think it was competent, under the rule announced in Keyes v. City of Cedar Falls, 107 Iowa, 509, 78 N. W. 227. In that case it is said (Deemer, J., speaking for the court): “The weight of reason and authority supports the rule admitting such evidence. * * * Whenever the physical or mental condition of a person is in issue, expressions or declarations of present, existing pain, whether made at the time the injury was received or subsequently, are admissible in evidence. Such expressions and statements as to the location of the malady or pain are exceptions to the general rule which excludes hearsay evidence, and they are admitted on the ground of necessity, as being the only means of determining whether pain or suffering is endured by another; and whether they are simulated or not is a question for the jury.” With this statement of the rule now in force in this state we are content, and accordingly adhere thereto. But counsel for appellant further argues that, conceding such to be the present rule, it should be limited in its operation to exclamations of pain--to such expressions as are the result of pain--and should not be extended to include mere statements or declarations of the fact that pain exists. Such position is not in harmony with the language quoted from the opinion, nor the spirit of the rule. If the evidence offered be in the nature of a statement made by the person claiming to have been injured, declaratory merely of the fact that at the time of making such statement he is suffering pain or distress, we think the evidence is admissible under the rule. On the other hand, statements or declarations having reference to conditions in time past, and such as are purely recitative or descriptive in character, are not admissible, within the meaning of the rule.

2. As a witness, plaintiff testified that a fight occurred on the train, in which fight he was one of the participants; that during the same he was knocked down by some one, the blow being sufficiently severe to produce immediate insensibility. He says he does not know how or from what cause he fell from the train; that, after being knocked down in the car, he did not regain his senses until about 4 o'clock the next morning, when he found himself in the depot at Seymour. Dr. Banning was called as a witness by defendant, and testified that, about 11 o'clock on the night of the occurrence in question, plaintiff was brought to his office for medical attention. The doctor was then interrogated with reference to the condition in which he found plaintiff, as to being conscious or unconscious; also whether or not plaintiff talked to persons who were in the room in a general and intelligent way. To this plaintiff interposed an objection, based on section 4608 of the Code, and such objection was sustained. The Code provision invoked is as follows: “No practicing * * * physician * * * who obtains such information by reason of his employment * * * shall be allowed, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice.” All will agree that the manifest purpose of this statute is to make it possible for every person to fully and freely consult with a physician, or submit himself to the examination of such physician, without anticipation or fear that the confidence reposed may be broken in upon by a subsequent examination of the physician as a witness in some form of legal proceeding. This being true, the statute should have a liberal construction by the courts. Accordingly we have held that the expression “confidential communications,” as used in the statute, is not to be restricted to the mere verbal statements made by the patient, but must be construed to include all knowledge or information acquired by the physician through his own observation or examination. Prader v. Accident Ass'n, 95 Iowa, 149, 63 N. W. 601;Baxter v. Cedar Rapids, 103 Iowa, 599, 72 N. W. 790;Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907. In the case at bar the interrogatories propounded to the physician were intended to elicit from him certain facts respecting the condition of plaintiff, and it is manifest that whatever knowledge the witness possessed was acquired from the statements made to him by plaintiff, and from his own examination and observation. Clearly in such a case the statute applies, and the privilege may be insisted upon. Nor is the privilege taken away, as contended for, by the fact that while upon the witness stand, and elsewhere, plaintiff had stated that he was unconscious when taken to, and while he remained in, the office of the physician, and that the testimony sought to be elicited had relation solely to the condition of plaintiff as to consciousness; the purpose thereof being the impeachment of plaintiff as a witness. In McConnell v. Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778, we said: “It is not enough to say that in some cases it [the testimony of the physician] may operate to defeat the designs of falsehood. Such a rule would practically annul the provisions of the statute. It cannot be questioned that greater freedom as to such testimony would in some cases work good results, and in others bad. It is a proper matter for legislative regulation, and, after considering the reasons for and against the rule, it has placed the obligation of secrecy on the lips of the physician unless it is removed by the party in whose interest it was so placed.” We are not to be regarded as overlooking the further contention of counsel for appellant in the case at bar to the effect that the testimony here sought to be elicited did not relate to any communication “necessary and proper to enable him to discharge the functions of his office,” etc. It may be true, possibly, that the knowledge acquired by the physician was not, in point of fact, and strictly speaking, necessary and proper to enable him to perform the functions of his office. But of this we are not in position to judge, nor are we called upon to determine what the fact might be when reduced to a last analysis. It was the condition of plaintiff that was the subject of the inquiry, and it was the professional judgment of the physician that was called for. The privilege cannot be subject to measurement by metes and bounds, and we may well assume that all that was told to the physician, and all that was developed by his examination or came under his observation, was necessary and proper for his understanding of the condition of his patient. The relation of physician and patient being established, if by any fair intendment communications made have relation to the physical or mental condition of the patient, we are bound to hold them privileged. As bearing upon the subject, see Raymond v. Railway, 65 Iowa, 152, 21 N. W. 495;Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907;Nelson v. Oneida, 156 N. Y. 219, 50 N. E. 802, 66 Am. St. Rep. 556;Gartside v. Ins. Co., 76 Mo. 446, 43 Am. Rep. 765;Association v. Beek, 77 Ind. 203, 40 Am. Rep. 295. It follows from what we have said that there was no error in rejecting the testimony offered.

3. Dr. Earnest, living at Seymour, was called as a witness by the defendant. He testified that he was the local surgeon of the defendant company; that about midnight of the day of the accident he was called by the station agent, and went to the depot, where he saw plaintiff. Thereupon the following: “Q. Did you ask him as to his injuries? A. Yes, sir. Q. Were you called there to do something for him? A. Yes, sir; I was called there to see him. Q. You were called there to see what, if anything, was the matter with him? A. Yes, sir. Q. Did you treat him at all? A. I dressed one small wound. Q. You were not called there for any other purpose than to see what his injuries were? A. I was called to the depot to see a man that was hurt. Q. Now, in asking him questions, did he answer them, and did he do so intelligently and rationally? Q. What, if anything, did plaintiff say in that conversation as to...