Epstein v. Pennsylvania R. Co.

• Decision Date: 10 May 1913
• Citation: 250 Mo. 1,156 S.W. 699
• Parties: EPSTEIN v. PENNSYLVANIA R. CO.
• Court: Missouri Supreme Court

156 S.W. 699

250 Mo. 1

EPSTEIN v. PENNSYLVANIA R. CO.

Supreme Court of Missouri.

May 10, 1913.

1. COURTS (§ 231) — SUPREME COURT — JURISDICTION OF CAUSE TRANSFERRED FROM COURT OF APPEALS.

Under section 6 of the amendment of 1884 to the Constitution, providing that when any Court of Appeals shall render a decision which any of the judges therein sitting shall deem contrary to any previous decision of any of the Courts of Appeals or of the Supreme Court, the court must certify and transfer the cause or proceeding to the Supreme Court, and thereupon the Supreme Court must rehear and determine the cause or proceeding as in case of jurisdiction obtained by ordinary appellate process, where a case is transferred because of a supposed conflict with prior decisions, the jurisdiction of the Supreme Court is not dependent upon the actual existence of such a conflict.

2. WITNESSES (§ 209) — PRIVILEGED COMMUNICATIONS — TESTIMONY OF PHYSICIAN.

Where a person injured in a railroad wreck was removed to a hospital by the railroad company's agents and officers, where he was examined and treated by a member of the medical

staff and by physicians of the town not connected with the hospital, who assisted in attending those injured in the wreck for humane purposes, information acquired by these last-mentioned physicians was within the privilege of Rev. St. 1909, § 6362, providing that a physician or surgeon shall be incompetent to testify concerning any information acquired from any patient while attending him in a professional capacity, and which was necessary to enable him to prescribe for such patient as a physician or to do any act for him as a surgeon, since it is only necessary that the information be obtained while attending a patient in a professional capacity, thus excluding the necessity for any express or implied contractual relation, and including all cases where from the nature of the service intended or rendered the relation of physician and patient arises.

3. WITNESSES (§ 219) — PRIVILEGED COMMUNICATIONS — WAIVER OF PRIVILEGE.

A person injured in a railroad wreck was by the company's officers and agents removed to a hospital, where he was examined and treated by a member of the medical staff and two physicians of the town not connected with the hospital, who assisted in attending those injured in the wreck for humane purposes. In an action for personal injuries he testified fully as to the examination and treatment of and consultation with the member of the medical staff, and permitted the member of the medical staff to testify fully relative thereto for defendant without objection, but objected to the depositions of the two other physicians who were present while he was being examined and treated and were consulted with touching his injuries by the member of the medical staff. Held, that he waived the privilege given by Rev. St. 1909, § 6362, which provides that a physician or surgeon shall be incompetent to testify concerning any information acquired while attending a patient in a professional capacity, and necessary to enable him to act as a physician or surgeon, since such privilege is waived where the patient by his own voluntary testimony, by offering as a witness one out of two or more of his own physicians, or by neglecting to object when his physicians are offered by the adverse side, removes the statutory veil of secrecy, and hence such depositions were improperly excluded.

Woodson, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Samuel Epstein against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appealed to the Court of Appeals, which affirmed the judgment (143 Mo. App. 135, 122 S. W. 366) and transferred the cause to the Supreme Court. Reversed and remanded.

This is an action for personal injuries alleged by the plaintiff to have been incurred by him in a wreck on defendant's railroad on the night of January 6, 1906. The case was tried in the circuit court of the city of St. Louis, and resulted in a verdict by nine of the jurors in favor of plaintiff, assessing his damages at the sum of $4,000. From this verdict and the judgment which followed, defendant, after the usual motions for a new trial and in arrest of judgment, appealed to the St. Louis Court of Appeals. The case was heard in the St. Louis Court of Appeals at the October term, 1909, and judgment rendered, and an opinion filed in said court on the 2d day of November, 1909, affirming the judgment of the court, nisi, in all things. See 143 Mo. App. 135, 122 S. W. 366. But as Judge Reynolds, presiding judge of said St. Louis Court of Appeals, deemed the conclusions reached in the case on the controlling points involved therein to be in conflict with the decisions of the Kansas City Court of Appeals in the case of Webb v. Met. Street Ry. Co., 89 Mo. App. 604, and the case of Highfill v. Mo. Pac. Ry. Co., 93 Mo. App. 219, the case was transferred to this court pursuant to section 6, of the amendment of 1884 to our Constitution. Touching the matter of our jurisdiction to entertain it, and whether the case is rightfully here, is strenuously questioned by the respondent. This point will be fully considered in the opinion herein, and we need not do more here than to give it bare mention, and thus preserve it for further reference.

The only question raised at the trial was as to the extent of the injuries resulting to plaintiff, and the amount of compensation he was entitled to therefor. The injuries which plaintiff claims to have suffered, and a part of the resultant damages accruing, are thus set forth in his petition: "That his person was caught and became pinioned in said wreckage for a long time. That thereby his ankle was sprained, his leg, knee and person, stomach and liver were, and have been, wounded, crushed, bruised, cut, contused, both externally and internally, thereby greatly and permanently injuring him. That he was, and has been, confined to his bed and house by reason thereof for a long time. That by reason of said injuries he was, and has been, disabled and prevented from going to New York City, N. Y., for the purpose of buying supplies and goods to carry on the wholesale dry goods, merchandise, and notions business, in which he was engaged, to his great loss and damage. That he was, has been, and will be unable to give his ordinary and usual time, care, and diligence to his business. That he was, has been, and will be prevented from work, labor, and service, thereby greatly impairing his earning capacity. That he did, has been, and will be compelled to procure medical attention, medicines, nursing — nurse hire and expenses to Lena Epstein for 18 days, $100, and round-trip fare, $40, for nurse from Corry, Pa., to St. Louis, Mo., for nurse; and costs for physician's attentions to Dr. M. Golland from January 17 to June 7, 1906, 124 calls, $3 each, $372; 11 night calls, $10 each, $100; 16 visits at office, $2 each, $32; surgical dressings, $23; and hospital expenses at Corry, Pa., $100 — which were, now are, and will continue to be necessary for an indefinite period. That by reason of such great injuries and the horror of said wreck his nervous system was caused to collapse, and his sexual powers to become impotent, and he has been, and will in the future be, by reason of said injuries and nervous shock, permanently injured; has suffered, and will in the future suffer, great mental pain and bodily anguish."

The wreck in question occurred about 10 miles from the town of Corry, Pa., and was one of the sort which usually occurs when a railroad company attempts to run two trains, going in opposite directions, at the same time, on the same tracks at the same point. A collision occurred, and the car in which plaintiff was riding was demolished. Plaintiff was thrown against the corner of the seat in front of him, and thence to the floor; the sides of the coach were buckled or bent in, and the flooring of the car was also buckled and bent upward; the seats and cushions were torn loose; two other passengers were hurled down and on top of plaintiff, and plaintiff's legs were caught and pinioned between the floor of the car, as buckled or bent upward, and the bottom, wooden portions of the seat. He was, as he states, "terribly frightened," and laboring under the fear that the "coach would catch on fire and that he would be burned up." It was necessary in order to release plaintiff to use axes and crowbars in cutting and prying the débris off of and from about plaintiff. The immediate causes of the injuries occurring to plaintiff, as we gather them from his testimony, were the pinioning of his left leg under the seat as stated and the falling of another passenger upon his body, particularly upon his stomach.

The nature of the injuries received, as plaintiff details them, consisted in a tearing away of the flesh from the ankle and bone of his left leg, and in some sort of an internal injury to his stomach, which injuries, he says, in addition to crippling him and rendering him lame, and confining him to his house and keeping him away from his business for some four months, have resulted in the permanent impairment of his nervous system and in rendering him sexually impotent. It will suffice to say, however, upon this point, that there was a sharp conflict in the testimony as to the extent of plaintiff's injuries. In fact, as stated in the beginning, this was the only point in issue. If plaintiff is to be believed, the judgment in his favor for $4,000 was none too much; if defendant's contentions are true, then plaintiff is entitled to little more than nominal damages.

Upon the trial, touching the contention of plaintiff that he had been by his injuries and by the shock to his nervous system, and the fright engendered thereby, rendered sexually impotent, the following questions were asked and answered: "Q. Before you were injured were you able...