Cramer v. Hurt
| Decision Date | 06 February 1900 |
| Parties | CRAMER, Appellant, v. HURT |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. W. N. Evans, Special Judge.
Reversed and remanded.
H. A Edwards for appellant.
(1) The court committed manifest error: It permitted respondent to testify to what he had learned of appellant's wife's condition during a professional examination, and the giving of her purported statements during the same without her permission and over the objections of the appellant. R. S 1889, sec. 8925; Gartside v. Ins. Co., 76 Mo. 446; Kling v. City of Kansas, 27 Mo.App. 231; Underhill on Evid., sec. 178. (2) Not simply because the law of public policy prohibits it, nor because the statutes of the State of Missouri forbid such testimony, but for a greater reason than these, that the appellant's wife was prevented by a similar statute from testifying in this case and respondent invoked it in his behalf, but ruthlessly broke the one barring him and heaped, what may be calumny, upon her head that she was powerless to contradict. (3) It was an unjust discrimination against the appellant. The court should have permitted appellant's wife to have testified, ex necessitata rei, if it permitted the respondent to testify on the same theory. Yet there is nothing of record to show that it even required of the respondent reasons to invoke this theory of the law. (4) Appellant had to make his case without the benefit of what took place in respondent's office though he had equally as competent testimony for that purpose as respondent; it should not be allowed respondent against a statute to the contrary for any purpose.
W. M. Williams and John Cosgrove for respondent.
(1) Appellant contends that under section 8925, R. S. 1889, he can remove the veil of secrecy from what occurred between his wife and respondent, but when respondent offers to state his side of the transaction his mouth is closed. The language of the statute, we contend, will not bear such a construction. It would put any physician at the mercy of an unscrupulous person who could make and swear to any kind of a charge and the physician would be entirely helpless. The trial court rightly permitted respondent to testify to prevent a miscarriage of justice. The necessities of the case are such as to render his testimony competent. Henry v. Sneed, 99 Mo. 407; Moeckel v. Heim, 134 Mo. 576. (2) The publicity by appellant and his wife of what transpired between Mrs. Cramer and respondent unsealed the lips of respondent. Had not appellant and his wife disregarded the privilege accorded the latter by the statute respondent would have been bound unto secrecy. Mrs. Cramer's offer to testify in the case was a waiver of the privilege accorded her by the statute. She and her husband had a right to waive the statutory privilege and protection if they saw fit to do so. Blair v. Railroad, 89 Mo. 383; Thompson v. Ish, 99 Mo. 160; Davenport v. Hannibal, 108 Mo. 471. (3) The statute secures to the patient of a physician a privilege only; this privilege may be waived by the patient, or the representative of the patient. Appellant, in this case, represented his wife. Groll v. Tower, 85 Mo. 249. The bringing of the suit made that public which the statute intended should be kept secret. This was a waiver of the statutory protection and privilege.
This is an action by plaintiff against the defendant, a practicing physician, for damages in the sum of five thousand dollars for producing an abortion upon plaintiff's wife, Cellantine Cramer, and in so doing using upon her body and womb certain surgical instruments, by reason of which she became greatly wounded and diseased of her body, sick, and her life endangered, and she wholly unable to perform her domestic duties, as his wife, and to give him such social companionship and to perform such social and conjugal duties as he is entitled to from her, and for moneys expended by him for medicine for her and for medical services.
The answer admits that Cellantine Cramer is the wife of plaintiff; that defendant is a practicing physician; that she called upon him on the 25th day of July, 1895, for treatment, and was treated by him, and alleges that such treatment was according to his best judgment and skill, and denies all other allegations in the petition.
By reply all new matter set up in the answer is denied.
There was a verdict and judgment for defendant, and after unsuccessful motion for a new trial plaintiff appeals.
There was testimony tending to sustain the allegations in the petition, as well also as the defense set up in the answer.
During the trial Mrs. Cramer was offered as a witness in behalf of her husband, but upon objection by defendant upon the ground that she was incompetent to testify on the part of her husband she was not permitted to testify.
Over the objection and exception of plaintiff the defendant who was introduced as a witness in his own behalf was permitted to testify concerning information which he acquired from the wife of plaintiff while attending her in a professional character, by an examination of her body and from conversation with her, which was necessary according to his testimony in order to enable him to treat her, as well also as to the conversations had between himself and her with respect to her condition and the treatment necessary in her condition, what he said to her, etc., and in this ruling plaintiff insists that the court committed reversible error.
By section 8925, Revised Statutes 1889, a physician or surgeon is prohibited from testifying concerning any information which he may have acquired from any patient while attending him or her in a professional character, if such information is necessary to enable him to prescribe for such patient as a physician, or to do anything for such patient as a surgeon and unless this statute does not mean what it says, or the necessities of the case are such as to render the testimony competent notwithstanding the statute, or the privilege accorded by the statute to plaintiff's wife of suppressing as evidence information acquired by the defendant while attending her in a professional capacity was waived by her and her husband by the institution of this suit, or by the offer of Mrs. Cramer by plaintiff as a witness in the case, the position seems to us to be well taken.
This statute was intended for the protection of the patient against the disclosures of information obtained by a physician in course of his employment as such without the consent of the patient, and in this case unless such evidence was admissible upon the ground of the exigencies of the case, or such privilege was waived by the plaintiff, the evidence objected to was not admissible.
Under the Michigan statute upon the same subject, which is substantially the same as ours, the Supreme Court of that State in construing it in Railroad v. Martin, 41 Mich. 667, said: [See, also, Groll v. Tower, 85 Mo. 249.]
But defendant contends that the necessities of the case are such as to render the testimony of defendant competent. In Henry v. Sneed, 99 Mo. 407, 12 S.W. 663, it was held that plaintiff and his wife might testify as to conversations between themselves as to the transaction in question, as part of the res gestae, and also on the ground of fraud, and this because of the necessity of the matter.
So where a husband, in furtherance of the fraud of others, prevailed upon his wife to sign a note and incumber her property, in the absence of other evidence, and in order to expose the fraud in all its details, it was held that a court of equity would because of the necessity of the matter permit both husband and wife to testify with respect to the conversations had between them in regard to the transaction. [Moeckel v. Heim, 134 Mo. 576, 36 S.W. 226.]
While under the general common law rule Mrs. Henry and Mrs. Moeckel would have been incompetent to testify in these cases, their husbands being their co-parties the rulings in them are justified upon the ground of the matters testified to by them being within their own personal knowledge, and their testimony a matter of necessity. So in the case at bar, the facts to which the defendant was permitted to...
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