Davis v. Elzey

• Citation: 126 Miss. 789,88 So. 630
• Decision Date: 06 June 1921
• Docket Number: 21827
• Court: Mississippi Supreme Court
• Parties: DAVIS, Director General of Railroads v. ELZEY

88 So. 630

126 Miss. 789

DAVIS, Director General of Railroads v. ELZEY

No. 21827

Supreme Court of Mississippi

June 6, 1921

1 RELEASE. Capacity to make settlement for injuries held for jury.

Where a party was injured in a collision with a train of a railroad company, and where a release and settlement is pleaded in bar of the action, and where the evidence is in conflict as to his capacity to make an agreement, the question is for the jury, and its decision is binding.

2 NEGLIGENCE. Contributory negligence no bar under statute.

Under our joint negligence statute (chapter 135, Laws of 1910; sections 502 and 503, Hemingway's Code), a plaintiff in a damage suit for personal injury is not debarred from a recovery, though he negligently drove upon a railroad track without stopping, looking, and listening, if the railroad company was also guilty of negligence in not sounding the whistle or bell, and in running through a municipality at a greater rate of speed than allowed by law in violation of the statutes of the State.

3 RAILROADS. Punitive damages recoverable for injuries during federal control.

Under the provisions of the Federal Control Act of August 29, 1916 and Act March 21, 1918 (U. S. Compiled Statutes 1918, Compact Edition, p. 458), punitive damages may be recovered in a suit for personal injury where the same could be recovered before the federal control was assumed, the said acts providing that while under federal control the carriers shall be subject to all laws and liabilities as common carriers whether arising under state or federal laws, or at common law, except so far as may be inconsistent with the provisions of said act. In all other respects it was the intent of Congress to leave the laws of the states in full force.

4 RAILROADS. Executive order held not to preclude recovery of punitive damages.

General Order No. 50, directing all suits against all carriers, except for "penalties," etc., to be brought against the Director General, and not against the carriers, does not preclude the recovery of punitive damages in an action for personal injury against the Director General where the proper elements for the recovery of punitive damages exist. The actions for penalties, excepted in the General Order No. 50, are for such penalties as may be sued for and recovered in a separate action. Punitive damages are not recoverable in a separate suit, nor as a matter of right, but may be allowed in proper cases by the jury, or they may be denied in the discretion of the jury, though the elements authorizing their allowance exist in the evidence.

5. WITNESSES. Testimony of physician attending patient not admissible unless consented to by patient; privilege held not waived.

Under section 3695, Code of 1906 (section 6380, Hemingway's Code), the testimony of a physician, where the relation of physician and patient exists, is not admissible as to matters disclosed by virtue of the relation without the consent of the patient; and the placing of other physicians on the witness stand to testify as to facts learned at the same time because or through the relation does not waive the patient's right to object to the evidence of his physician, though the examination of the patient was made jointly. U.S. F. & G. Co. v. Hood. 87 So. 115, and other cases cited.

6. APPEAL, AND ERROR. Railroads. Instruction on presumption of of negligence held erroneous, but harmless.

It is error in a suit for personal injuries where the facts are disclosed to give the following instruction: "The court charges the jury that under the law proof of injury inflicted by the running of trains is prima-facie evidence of the want of reasonable skill and care on the part of the servants of the defendant with reference to such injury, and this presumption of negligence on the part of defendant's servants remains and controls in the case until the facts and circumstances with reference to the injury have been satisfactorily proven to the jury, and if you are satisfled by a preponderance of the evidence that the plaintiff was injured by the running of a train of defendant, but are in doubt as to the facts and circumstances attending the injury, the defendant will be presumed to have been guilty of negligence and you will find for the plaintiff." But the giving of the instruction in the present case is not reversible error, because the evidence for the defendants shows it was negligent under sections 3546 and 3547, Code 1892 (sections 4043, 4045, Code of 1906; sections 6667 and 6669, Hemingway's Code).

HON. C. P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Action by Alex Elzey against James C. Davis, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.

ON SUGGESTION OF ERROR.

On suggestion of error. Suggestion sustained, and case remanded for new trial as to damages alone; judgment being affirmed as to liability.

For former opinion, see 88 So. 630.

Judgment affirmed. Suggestion of error sustained, and case remanded.

J. M. Boone, for appellant.

The evidence offered by appellee in support of his replication is not clear and convincing and indubitable that the release was secured by fraud or misrepresentation, and therefore it failed to support the replication. Railway v. Trumbull, 71 Miss. 1039.

We further contend that plaintiff's own gross negligence was the sole cause of his injury. The verdict in this case is excessive, and the result of passion and prejudice. The court erred in excluding the testimony of Dr. S. C. Spencer, Dr. W. C. Spencer, and Dr. Donaldson.

We recognize the fact that this court has construed section 3695, Code of 1906, in several cases, but the first point we raise here is not in conflict with any of the cases in which this court has construed said statute. Our first point is that there was a conference of four doctors brought together to examine plaintiff for the purpose of testifying in a law suit to be brought, and plaintiff introduced three out of the four doctors making this joint examination, thereby opening wide the door as to the actual physical condition and extent of injury to plaintiff; and yet, defendant was not allowed to introduce the fourth doctor to give his version of what was discovered and what transpired during said conference and examination of plaintiff. No court has ever held that this privilege communication could not be waived by the plaintiff, every court will hold that it is subject to waiver, and if there is such a thing as a waiver, then when plaintiff put on three out of four doctors, he certainly waived the privilege to close the mouth of the fourth doctor. The reason of the statute is immaterial. Whatever reason prompted the enactment of the statute, it clearly appears that when plaintiff introduced three of the four doctors the reason for secrecy, or the evil of commercializing knowledge was completely waived in so far as what was discovered and transpired at this joint conference was concerned.

To permit plaintiff to exclude the testimony of Dr. S. C. Spencer, under these circumstances, is condemned by the court in the case of Epstein v. Penn R. Co., 250 Mo. 1; Ann. cases 1915A at 434.

Now, we are not contending that if plaintiff had declined to put on any doctors and had thus kept the door closed that we would have the right to introduce our doctors; but when the door of secrecy is removed by plaintiff and a number of doctors allowed to testify, especially when the examination of all the doctors covered practically the same period of time, that the court, in the interest of truth and justice, ought to permit the testimony to go to the jury. Mr. Wigmore says a waiver is to be predicated not only when the conduct indicates the plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position with reference to the evidence that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be a sword and a shield. Fourth Wigmore on Evidence, 2388.

Dr. S. C. Spencer's testimony was clearly competent to show that he was present when the settlement was made with plaintiff and that he heard the paper read to plaintiff and saw the plaintiff sign it. Blossi v. Chicago R. Co., 144 Iowa, Ann. Cases 1919A, page 404. Yet, the whole of Dr. S. C. Spencer's testimony was excluded. The general rule is that this privilege only extends to information acquired in attending a patient which was necessary to enable him to prescribe or act for the patient and in order to be privileged it must be necessary for the treatment of the patient. This is held to be the purpose of the statute regardless of the particular wording of the statute. See Note to the case of Bordan v. McWilliams, Ann. Cases 1916A page 403.

The court below erred in granting the sixth instruction for plaintiff, as to the last clause therein, to-wit: "And if the jury find from the evidence that the defendant was reckless or wantonly negligent, they may add a further sum by way of punishment of such conduct."

This is a suit against the Federal Government, through its agent, the Director General of Railroads. The question as to whether or not a party injured by a railroad has a right to sue the railroad corporation instead of the director general of railroads is not involved in this case, and the different positions taken by the different courts of the country on this question is immaterial for the reason that plaintiff in this case has seen fit to base his right for redress against the director general of railroads as agent of the federal government, and is entitled, therefore, to no right which he cannot enforce against the United States government. It...