Booren v. McWilliams

• Decision Date: 15 January 1914
• Citation: 26 N.D. 558,145 N.W. 410
• Parties: BOOREN v. McWILLIAMS.
• Court: North Dakota Supreme Court

26 N.D. 558

145 N.W. 410

BOOREN

v.McWILLIAMS.

Supreme Court of North Dakota.

Jan. 15, 1914.

Syllabus by the Court.

In an action for breach of promise of marriage, defendant offered to show by a physician a conversation with the plaintiff, on the occasion of a visit to her subsequent to her confinement, which conversation, if testified to, would show statements of plaintiff in direct conflict with her claims in this litigation. During the proceedings to determine whether the testimony of the doctor was privileged under the statute, the court, in addressing counsel, said in part: “If a man can act as a doctor just as has been testified to here, if he can act as a doctor and make a call, and then, when called again, repudiate the professional part of it and become something else, if he can do that in a case of this kind, he can go out and separate his visits into two calls. He can make the call professionally and act as a detective right straight through. We have a good and wholesome statute on that, and if this kind of business can prevail, there is nothing in it, and it is wiped out and torn to pieces.” The offer of proof which called forth this declaration was to show statements made by plaintiff, when it was claimed the witness was not attending her in a professional capacity. It is held under these facts and all the surrounding circumstances that this statement by the court was unwarranted, and in a case where the evidence of the parties as to the direct issues was practically uncorroborated and in direct conflict, and a slight thing might influence the verdict, was prejudicial.

Many minor errors disclosed in the record, all unfavorable to the defendant, considered in connection with the whole record, indicate that he did not have a fair trial.

Section 7304, Rev. Codes 1905, prohibits a physician being examined as a witness, without the consent of his patient, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient. Held, that the object of this statute is to inspire confidence in the patient and encourage him to make a full disclosure to the physician of his symptoms and condition, by protecting against physicians making known to the curious the ailments of their patients, particularly when afflicted with diseases which might bring reproach, criticism, unfriendly comment or disgrace upon the patient, if known to exist.

When a party to litigation seeks to exclude the testimony of a physician on the ground that it is privileged under the above statute, the burden is upon such party to bring or show the evidence to be within the terms of the statute granting the privilege.

The question of the privileged character of the testimony is for the court, taking into consideration all the circumstances, and, if necessary, the opinion of the physician and the belief of the patient.

Two facts must combine to render the testimony of a physician privileged under the provisions of section 7304, Rev. Codes 1905, namely, he must have acquired the information while attending the patient in his professional capacity, and the information must also have been necessary to enable him to prescribe or act for the patient. Held, under the facts of this case, that the testimony sought to be elicited from the physician was not privileged, as it is clear that the questions did not call for information necessary to enable the physician to prescribe or act for her.

An offer was made to prove that the physician who attended plaintiff during confinement, on a subsequent visit to her, was told by plaintiff that she did not have intercourse with defendant until after the 4th of July, or about 6 1/2 months prior to the birth of a child, that she never had any talk with defendant about marriage, and that the reason she let him have intercourse with her was that she thought, if she became pregnant, he would marry her. Held, that, under the circumstances surrounding the visit, it is apparent that such information, if given the physician, was not necessary to enable him to prescribe or act for the plaintiff, and that therefore it was not privileged under the statute.

In an action for breach of promise of marriage, in which seduction is a proper element in aggravation of damages, the physical suffering occasioned by the birth of a child resulting from the seduction may be considered in determining the damages.

An instruction to a jury that it might take into consideration all the other facts and circumstances in the case in assessing damages is too broad; but in this case cannot be said to have been prejudicial.

Certain rulings of the court on the admission and exclusion of evidence examined, and held erroneous.

Without setting forth the evidence on the subject of a contract of marriage, it is held that the record in this case discloses sufficient evidence tending to show an implied agreement to marry, to warrant submitting the issues to the jury.

Appeal from District Court, Towner County; J. F. Cowan, Judge.

Action by Annie Booren against George E. McWilliams. From judgment for plaintiff and denial of new trial, defendant appeals. Reversed.

Burke and Goss, JJ., dissenting.

P. J. McClory, of Devils Lake, and Bangs, Cooley & Hamilton, of Grand Forks, for appellant. F. T. Cuthbert and A. R. Smythe, both of Devils Lake, Kehoe & Moseley, of Cando, and L. H. Sennett, of Eugene, Or., for respondent.

SPALDING, C. J.

This is an action for damages for breach of promise of marriage aggravated by seduction. The defendant is a bachelor, 46 or 47 years of age, and quite well to do, owning and residing on a farm in Towner county. The plaintiff was a divorced woman and the mother of two children, who were not living with her at the time the incidents occurred which are the basis of this action. She and the defendant were strangers. She heard that he was in need of female help in his household, and applied to him for employment under her maiden name. Her application resulted in her being employed as housekeeper.

It is not now necessary to relate the acts which occurred between the parties, which, according to plaintiff's version, resulted in illicit intercourse between them, and the birth of a child, which died shortly after its birth.

The defendant denies in toto all illicit relations and any agreement to marry, and claims not to have known that she was pregnant until the time of her confinement. On becoming ill she asked him to call the doctor, which he accordingly did. The doctor visited her in response to the call and she was delivered of a child. He visited her a second time and a third time. After the plaintiff had shown facts and acts which she claimed constituted an engagement to marry, and the subsequent relations of the parties, the doctor who attended her during confinement was called as a witness by the defendant. He testified that McWilliams, the defendant, called him over the telephone on the morning of the 22d of January, 1910; that he heard him say to some one that “the doctor wanted to know what is the matter with you”; that McWilliams replied to the doctor. His reply was excluded on objection. On this visit he was acting as her physician and nothing else, and a child was born to her at that time. We pass over certain objections made to his testifying as to the child being full term or otherwise, and come at once to a question on which a majority of the members of this court, after a reargument granted and had, are agreed, and which compels a reversal.

The doctor testified that he visited the plaintiff on a third occasion in the month of January, 1910, about a week following his first visit to her. On that occasion he had a conversation with her of which he had a recollection. The doctor was examined by plaintiff for the purpose of laying the foundation for an objection, and testified that this conversation was not had under the same conditions and circumstances as previous conversations: that he was not there in the capacity of a physician or treating the patient at that time; that he went there by request through her sister over the telephone, and that he took it not to be in a professional capacity; that, on receiving the call through the sister to go there, he went and found plaintiff still in bed; that he did not talk to her about her physical condition, or how she was getting along; that he might have asked her how she felt; that this was about a week after his second visit; that he had been there in the capacity of a physician and taken charge of the patient during confinement; that on his second visit he discharged himself and told her that he would not come again unless she requested him to; that he did not believe she was sick when he was there; that she was in bed, but had recovered from confinement, and was not what we would call sick, but was apparently in perfect health and normal; that he did not make any examination of her physically, though he thought he asked her if she felt all right; that he did not talk to her about medicine or treatment, or ask her about that at all; that at that time he had something else in mind other than a professional trip, and no one had agreed to compensate him for that trip; that he made it as an act of charity; that McWilliams had never requested him to go there; that the last talk he had had with plaintiff was that he would not call again unless sent for by her.

After these preliminaries, the defendant offered to prove by the witness that, about the 27th day of January, 1910, the witness had a conversation with plaintiff, wherein she told witness that the defendant had never promised to marry her, and that she and defendant had never talked of marriage. This offer was objected to on the ground that no foundation was laid; that it was incompetent, irrelevant, and immaterial, and for the reason that it was immaterial under the provisions of subdivision 3, § 7304, R. C. 1905. This objection was sustained and...