Campau v. North

• Decision Date: 31 October 1878
• Court: Michigan Supreme Court
• Parties: Daniel J. Campau v. Martha North

39 Mich. 606

Daniel J. Campau v. Martha North

Supreme Court of Michigan

October 31, 1878

Submitted October 25, 1878

Error to Superior Court of Detroit.

Trespass on the case. Defendant brings error.

Judgment reversed with costs and a new trial ordered.

Alfred Russell for plaintiff in error. A physician is not excused from testifying to facts learned while attending a patient if the information was not necessary to enable him to prescribe Briggs v. Briggs, 20 Mich. 40; Johnson v Johnson, 4 Paige 468; Collins v. Mack, 31 Ark 684; the same principle applies to attorneys, Alderman v. People, 4 Mich. 422; Hatton v. Robinson, 14 Pick. 416; Barnes v. Harris, 7 Cush. 576.

J. W. Donovan and J. Logan Chipman for defendant in error.

Graves, J. Campbell, C. J. and Cooley, J. concurred; Marston, J. did not sit in this case.

OPINION

Graves, J.

The plaintiff in error being an invalid procured defendant in error to attend him in capacity of a nurse. She remained about two weeks and a half and went away. Some time thereafter she brought this suit upon the case to recover for various personal injuries and among them for a rupture caused as she alleges by his blows and other acts of violence against her while she was acting as his nurse. The jury returned a verdict in her favor for $ 1500 and error is charged.

When upon the stand as a witness in her own behalf she testified that she was in good health when she began for the plaintiff in error, but after leaving was sick and ruptured and that such injuries were caused by his personal violence.

On cross examination she was asked if she had not at a specified time and place admitted to Doctor Lichty that she had been ruptured before going to nurse plaintiff in error, and that he had not caused the rupture of which she made complaint, and she replied that she had not.

Dr. Lichty was afterwards called for plaintiff in error and having testified that he was employed and acted as her physician after she left plaintiff in error, that he had charge of her case and that all the facts which had come to his knowledge of and concerning her had been acquired by him while attending her in his professional capacity as her physician, was tendered as a witness to prove that she admitted to him, at the time and place specified in the question put to her, that she had been ruptured before she went to live with plaintiff in error and had not been ruptured by him. The offer was objected to by the counsel for the defendant in error on the ground that it was within Comp. L., § 5943. The section is in these terms:

"No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon."

The court sustained the objection.

The objection and ruling were based on the statute. The common law gives no privilege in such a case, 1 Greenleaf's Ev., § 248; 1 Wharton's Ev., § 606; 1 Starkie's Ev. (Phil. ed.), p. 40, mar.; 2 Best's Ev. (1st Am. from 6th Lond. ed.), § 582.

The rule given by the statute is beneficial and based on elevated grounds of policy, and it ought not to be frittered away by refinements. It is not to be forgotten, however, that parties have their rights, and that when one takes...