Demonbrun v. McHaffie

• Decision Date: 16 December 1941
• Docket Number: 37236
• Citation: 156 S.W.2d 923,348 Mo. 1120
• Parties: Leonard Demonbrun v. C. H. McHaffie, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 923

348 Mo. 1120

Leonard Demonbrun v. C. H. McHaffie, Appellant

No. 37236

Supreme Court of Missouri

December 16, 1941

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Reversed and Remanded (with directions).

E. G Wadlow, Joe N. Brown and Frank B. Williams for appellant.

(1) Mrs. Demonbrun, by her own evidence, and her husband, by his petition, made an issue of her physical condition prior to and after the alleged abortion, and affered Mrs Demonbrun's physician to prove impairment of her health by reason of the alleged abortion. This constituted a waiver of the statutory privilege which protects the secrets of the sick room. Wells v. City of Jefferson, 132 S.W.2d 1006; Weisman v. Wells, 306 Mo. 82, 267 S.W. 400. (2) When the patient is not a party, then on general principles the party cannot invoke the privilege; if the privilege is erroneously refused, the party cannot appeal on account of this error. 4 Wigmore on Evidence (2 Ed.), 2321; McNulty Appeal, 135 Pa. 210, 19 A. 936; Wells v. City of Jefferson, supra, page 1010, as to personal nature of statutory privilege. (3) Where a witness has been called and examined as to any material matter or point in the case, the opposing party may cross-examine him as to the whole case. The oath administered to a witness requires him to speak the truth, the whole truth and nothing but the truth. Page v Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; St. Louis, etc., Ry. Co. v. Silver, 56 Mo. 265; State v. Sayers, 58 Mo. 585; Kibler v. McIlwain, 16 S.C. 550; State v. Brady, 87 Mo. 142; Harris v. Ry. Co., 115 Mo.App. 527.

Collins & Pierce, Russell W. Gabriel and William S. Gabriel for respondent.

(1) Mrs. Demonbrun, wife of plaintiff (respondent), was not a party to the suit, did not volunteer but was called as a witness for the plaintiff. She did not thereby, nor in any manner, waive her privilege to keep secret any communication between herself and witness, Dr. Hall; nor any information obtained by Dr. Hall while he treated her professionally some three months prior to the abortion, notwithstanding Dr. Hall was called as a witness to testify to his treatment of her in the hospital in connection with the abortion, without objection by the defendant. Appellant covers his second and third assignments of error by his points Nos. VII and IX. R. S. 1929, sec. 1731; Cramer v. Hurt, 154 Mo. 112, 55 S.W. 258; Gilpin v. Life Ins. Co., 132 S.W.2d 686; Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709; Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89; Cable v. Johnson, 63 S.W.2d 433; Foman v. Life Ins. Co., 51 S.W.2d 212; Gartside v. Life Ins. Co., 76 Mo. 446; Monpleasure v. Am. Car & Foundry Co., 293 S.W. 84; Groll v. Tower, 85 Mo. 249. (2) The rule of privilege applies, although the patient is not a party to the action in which a disclosure is sought, or is not present to object. 70 C. J., p. 450, sec. 608, p. 448, sec. 604; Gartside v. Life Ins. Co., 76 Mo. 446; Darling v. Pacific Elec. Ry., 242 P. 703, 197 Cal. 702. (3) If the wife of plaintiff had any affliction at the time of the abortion and such physical ailment was aggravated by defendant's negligence, defendant is liable therefor. Monpleasure v. Am. Car & Foundry Co., 293 S.W. 84; Kiefer v. St. Joseph, 243 S.W. 104; Borowski v. Biscuit Co., 229 S.W. 424.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Leonard Demonbrun instituted this action against C H. McHaffie, a practicing physician, seeking $ 10,000 damages as the result of an alleged abortion performed by defendant upon Wilma Demonbrun, plaintiff's wife, without plaintiff's knowledge. Plaintiff's motion for new trial, defendant having prevailed before the jury, was sustained on the ground "the court erred in giving instruction." Defendant appealed. He asserts there was no error in his instructions or in the admission of evidence on his behalf, and that plaintiff made no case.

Plaintiff asserts error was committed in the admission of the testimony of Dr. Durward G. Hall with respect to his treatment of plaintiff's wife prior to her illness here involved.

Plaintiff's wife testified that she was married September 17, 1937; that on November 12, 1937, she employed defendant to and defendant performed the operation complained of; that she went to the hospital the next morning, remained there nine days, and was treated by Dr. Durward G. Hall, who "told me I had an infection;" and that she had an abortion while in the hospital. On cross-examination she testified that Dr. Hall had treated her professionally in June, 1937, advising she had chronic appendicitis and did not inform her nor treat her for a gonorrheal infection. Dr. Hall, called by the plaintiff, testified that he treated plaintiff's wife for her ailment in November, 1937; that she had much infection; that she passed a number of large blood clots but no embryonic tissue whatever; that he "saw nothing to indicate that there was anything in the nature of an abortion" or "fetal membrane or afterbirth, anything of that kind;" no bruises, or mark or evidence that she had been tampered with;" that, in fact, plaintiff's wife had not been pregnant; and that her condition could be attributable to something else. On cross-examination, he testified, over plaintiff's (not the patient's) objection, that he had treated her in June, 1937, for an acute infection of the female organs, gonorrhea; that he did not tell her she had chronic appendicitis; and that he attributed her condition in November, 1937, to the previous gonorrheal infection. We think this evidence proper under the facts of the case.

Plaintiff invokes Sec. 1895, R. S. 1939, Mo. Stat. Ann., p. 4011, Sec 1731, reading: "The following persons shall be incompetent to testify: . . . fifth, a physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon." In Cramer v. Hurt (Div. II, 1900), 154 Mo. 112, 55 S.W. 258, a suit of like nature, the issues presented on the husband's appeal were whether error had been committed (1) in permitting the physician to testify, and (2) in refusing to permit the wife to testify. The court held the physician was a competent witness notwithstanding the inhibition on his competency in then Sec. 8925, R. S. 1889 (Sec. 1895, quoted supra); reasoning that the prevention of injustice under the peculiar facts of the case necessitated the removal of the statutory disqualification. For the same reason, the wife was held a competent witness, although then Sec. 8922, R. S. 1889, had not removed the disqualification existing at common law against her competency in the case. [154 Mo. l. c. 116-120, 55 S.W. 258.] The broad disqualification of a husband or wife as a witness for or against the other at common law now stands removed for most purposes. [Sec. 1892, R. S. 1939, Mo. Stat. Ann., p. 4007, Sec. 1728; Laws 1921, p. 392.] Observations in Cramer v. Hurt immediately following the rulings mentioned, supra, on the issue of waiver appear to be dicta, the issues theretofore having been determined for the purposes of the review. The instant case differs in that plaintiff's wife and her physician were called by plaintiff and testified on the issue. The physician's testimony in chief, although bearing on the issue, failed to develop the cause for her condition in November, 1937, a constitutive element of plaintiff's case. There was testimony that scientific examinations were necessary for a determination of pregnancy in so short a time as was established therefor in the instant case. The jury, plaintiff having opened the privileged domain, was entitled to the opinion of the attending physician, who had pathological examinations made in accordance with scientific routine, on the cause of the patient's condition, if not developed by the plaintiff then to be developed by the defendant on cross-examination if so desired, and as an incident thereto the facts upon which that opinion was based in order to arrive at a just verdict and prevent injustice. The privilege under discussion was not known to the common law. In Smart v. Kansas City (Banc, 1907), 208 Mo. 162, 207, 105 S.W. 709, 722, the separate opinion of Lamm, J., concurred in by Graves, J., states: "A litigant should not be allowed to pick and choose in binding and loosing -- he may bind or he may loose. If...