Dotton v. Village of Albion
| Decision Date | 29 September 1885 |
| Court | Michigan Supreme Court |
| Parties | DOTTON v. VILLAGE OF ALBION. |
Error to Calhoun.
Rienzi Loud, for plaintiff.
A.M. Culver, for defendant and appellant.
When this case was before the court on a former occasion it was decided that there was some evidence in the record tending to show negligence on the part of the village authorities conducing to the plaintiff's injury, and that she was entitled to have it submitted to a jury. 50 Mich. 130, and 15 N.W. 46. On a second trial she has recovered judgment, and the case is now brought here by the defendant.
The point is again made that there is no showing of negligence but I am constrained to say that while it is very weak, and ought not, perhaps, to have led to a verdict for plaintiff it is substantially the same as that given on the first trial, and that the decision made in reviewing the former trial should therefore control.
Error is assigned on the rulings of the court upon the reception of evidence from physicians. Plaintiff claimed to have been seriously and permanently injured, and she called the physician who attended her on that occasion, and obtained evidence from him which tended to support her claim. He also testified that he had known the plaintiff before her injury and she seemed to be a strong, healthy, robust woman. The defense undertook to show that the plaintiff, instead of being healthy before, was afflicted with chronic ailments and for this purpose they called two physicians who testified that they attended upon her professionally, and were able to tell whether her constitutional health was impaired before the time of the alleged injury. They were then asked to state whether it was impaired in fact; but having stated, in response to an inquiry by the court, that such information as they had on that subject was obtained professionally, while in attendance upon the plaintiff as her physician, and was necessary to enable them to prescribe for her, the proposed evidence was excluded. It is said that this was error, because the plaintiff waived her privilege to have the seal of professional confidence preserved unbroken when she put her own physician upon the stand to testify to her condition. Doubtless she did so as to him to the extent to which she carried his examination; but it does not appear that he testified to any professional knowledge acquired in a relation of confidence, previous to the injury; and a waiver of her privilege in his case to permit him to disclose what he learned of her condition at that time could be no waiver of a similar privilege in the case of others relating to other occasions. If the other physicians had been called by her, and partial examination gone into on her behalf, it would have been different; but as the case stood, there seems to have been no error in excluding their evidence. How.St. � 7516; Campau v. North, 39 Mich. 606; Page v. Page, 51 Mich. 88; S.C. 16 N.W. 245; Storrs v. Scougale, 48 Mich. 388; S.C. 12 N.W. 502.
Objection was made that the plaintiff was allowed to prove what she earned in working by the day and otherwise at manual labor before the injury. This, it is said, bore on the question of damages, and was improper, because she was a married woman, and her services belonged to her husband, who might bring suit for loss of them. But an inspection of the record shows that the evidence was given to show the plaintiff's previous bodily condition, and that no damages were claimed in respect to loss of compensation or profits from labor.
It was claimed in the case that the plaintiff, on her own showing was guilty of contributory negligence, and...
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