Chi., R. I. & P. R. Co. v. Hughes
| Decision Date | 12 June 1917 |
| Docket Number | Case Number: 7540 |
| Citation | 1917 OK 303,64 Okla. 74,166 P. 411 |
| Parties | CHICAGO, R. I. & P. R. CO. v. HUGHES. |
| Court | Oklahoma Supreme Court |
¶0 1. Witnesses--Competency--Physicians. Where plaintiff, in an action for damages for personal injuries, testified as to the accident which caused the alleged injuries and the nature and extent thereof, and that previous thereto he was in good health and had never suffered similar injuries prior to the accident, and further that he called certain physicians to treat him and gave in detail the examination made and the treatment given by them, and denied upon cross-examination that he had stated to said physicians at the time of the examination that he had previously received a similar injury, and thereafter called one of said physicians as a witness in his behalf and interrogated him as to the examination and treatment rendered to plaintiff, it was proper to ask said physician whether plaintiff had stated to him that he (plaintiff) prior to the time of the alleged accident had suffered an injury similar to one of those for which damages were claimed.
2. Appeal and Error--Objections--Reception of Evidence. Where a question asked a witness upon cross-examination was objected to by plaintiff upon the grounds of incompetency, irrelevancy, and immateriality, and that the information sought to be elicited was a privileged communication, and the court sustained said objection upon the ground that said evidence was a privileged communication, the action of the court cannot be sustained upon the ground that said question constituted improper cross-examination, where the court and opposing counsel were not apprised of such ground of objection.
3. Commerce--Injuries to Servant--Actions--Federal Employers' ''''''' Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149, U.S. Comp. Stat. 1916, secs. 8657-8665), although the provisions of said act may not have been referred to in express terms in the pleadings or pressed at the trial.
4. Master and Servant--Injury to Servant--Assumption of Risk. It is error to instruct a jury in an action for damages for personal injuries that a servant does not assume such risks as are created by the master''''''''s negligence. The true rule in this regard is that the servant assumes all the ordinary risks of the employment which are known to him, or which could have been known with the exercise of ordinary care to a person of reasonable prudence and diligence under like circumstances; and with reference to risks not naturally incident to the occupation, but which may arise out of the failure of the master to exercise due care in the performance of some duty owing by him to the servant, the rule is that the servant does not assume such risks until he becomes aware of such negligence of the master and of the risks arising therefrom, unless the defect and risk are so apparent and obvious that an ordinary careful person would observe the one and appreciate the other.
5. Jury--Jury Trial--Right To. In an action governed by the provisions of the federal Employers'''''''' Liability Act in the courts of this state, the parties are not entitled to a unanimous verdict by a jury of 12 men; but section 19, art. 2, Const. (section 27, Williams'''''''' Ann.), authorizing nine or more of the jury to return a verdict applies.
C. O. Blake, W. H. Moore, and Edward Howell, for plaintiff in error.
H. H. Smith, for defendant in error.
¶1 J. L. Hughes began this action in the superior court of Pottawatomie county against the Chicago, Rock Island & Pacific Railroad Company to recover damages alleged to have been received on or about the 1st day of July, 1909. The parties will be referred to in accordance with their respective titles in the trial court. The petition alleged that plaintiff was engaged in the services of the defendant as a fireman upon an engine engaged in interstate commerce between Haileyville, Okla., and Booneville, Ark., and while so engaged, by reason of the defective condition of said engine, and the floor of the engine cab and of the water tank on said engine, he was, without fault or negligence upon his part, thrown against the wall and side of said engine and severely injured, maimed, and crippled. Issue was joined, and trial resulted in a verdict for plaintiff, and defendant prosecutes error. Plaintiff testified as to the accident and the injuries received, and specifically testified that as a result of such accident he received a rupture in the right groin, "a very bad rupture," for which injuries he was examined and treated by Drs. Hailey and Gardner. Upon cross-examination he further testified that prior to the accident he had never had a hernia on the right side, and was asked whether he made the statement, at the time of his examination, to said physicians ritorial Legislature, Kansas adopted a Code horn of a saddle and received a rupture at that point, to which he answered that he did not make such statement. Objection was made to this question, upon the ground that the testimony sought to be elicited was incompetent, irrelevant, and immaterial, and upon the further ground that such statement, if made, was a privileged communication. The objection was sustained; the court expressly placing his ruling upon the ground that, until the plaintiff himself voluntarily testified to such communication, the same was privileged. The answer of plaintiff, however, was not stricken. Plaintiff called as a witness Dr. Gardner, and questioned him as to the result of his examination, developing the fact that he had discovered a right inguinal hernia. Upon cross-examination he was asked whether plaintiff at the time gave him any history of a previous injury or inguinal hernia. Objection was made to this question upon the ground that it was incompetent, irrelevant, and immaterial, and a privileged communication, which objection was by the court sustained. Thereupon defendant dictated into the record the answer which it expected witness would make, from which it appears that said witness, if permitted to answer, would have testified that plaintiff told him that in 1901 he had been injured by being thrown upon the horn of a saddle, and that a rupture or hernia had resulted at that time at the same point. Error is assigned upon the exclusion of this evidence, in answer to which assignment plaintiff urges that such questions constituted improper cross-examination, and that such evidence, if admissible, should have been reserved and offered as a part of defendant''''''''s case in chief, and that the evidence was properly excluded, although this objection was not urged, and although the court based his ruling upon the wrong reason. It is not seriously contended that such evidence was inadmissible by reason of being privileged, if offered at the proper time. The cross-examination of a witness should be confined to the subject-matter of his direct examination. Woods v. Faurot, 14 Okla. 171, 77 P. 346; C., R. I. & P. v. Beatty, 34 Okla. 321, 118 P. 367, 126 P. 736, 42 L. R. A. (N. S.) 984. And the limits to which counsel may be permitted to go in such cross-examination rest largely in the discretion of the trial court. Jones v. Bradford, 79 Minn. 396, 82 N.W. 651; Stewart v. Stewart, 175 Ind. 412, 94 N.E. 564; Davis v. Coblens et al., 174 U.S. 719, 19 S. Ct. 832, 43 L. Ed. 1147. So, also, the order in which evidence shall be received at a trial must, to a great degree, be left to the sound discretion of the trial court, and unless it is made to appear that such discretion has been abused, no reversal will be had because of a ruling with reference to the order in which evidence must be introduced. Ackerman v. Chapell Hdw. Co., 41 Okla. 275, 137 P. 349. Plaintiff urges that, while the objections made to the introduction of said evidence were the general objections of incompetency, irrelevancy, and immateriality, and that it constituted a privileged communication, such objections were sufficiently broad to cover the specific objection that such question was improper cross-examination of the witness, and relies upon section 5070, Rev. Laws 1910, which provides that such general objection shall be deemed to cover all matters ordinarily embraced within such objections. It has been held that the objection that certain evidence cannot be called for upon cross-examination must be taken on that specific ground, and a mere general objection that the evidence is incompetent, irrelevant, and immaterial is not sufficient to present this objection thereto. Knapp v. Schneider, 24 Wis. 70; Schlencker v. State, 9 Neb. 241, 1 N.W. 857. The court having excluded the evidence offered upon the ground that such statements were privileged communications, within the protection of the statute, its ruling cannot now be sustained on the grounds that the question asked was improper cross-examination. Phelps v. Fuchs Lang Mfg. Co., 82 N.J.L. 474, 81 A. 728; McGivern v. Steele, 197 Mass. 164, 83 N.E. 405; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S.W. 1098; 3 C. J. 825, note 50. Was the proffered evidence privileged? Such privilege was not recognized at common law, and exists in this state by virtue of the statute. Section 5050, Rev. Laws 1910, is as follows:
"The following persons shall be incompetent to testify: * * * Sixth--A physician or surgeon, concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient; Provided, that if a person offer himself as a witness, that is to be deemed a consent to the examination; also, if an attorney,...
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