Forrest v. Portland Ry., Light & Power Co.

• Decision Date: 18 February 1913
• Citation: 129 P. 1048,64 Or. 240
• Parties: FORREST v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

129 P. 1048

64 Or. 240

FORREST v. PORTLAND RY., LIGHT & POWER CO.

Supreme Court of Oregon

February 18, 1913

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Gertrude H. Forrest against the Portland Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff was a passenger in one of the defendant's street cars, and claims to have been injured in a collision between that car and another one on the same line. She alleged "that the shock of said collision greatly injured the nervous system of the plaintiff, caused a displacement of her uterus, rendered her sick and sore caused her to be confined to her room almost constantly for two months, caused her great physical pain and suffering necessitated the employing of physicians and paying and incurring expenses for medical treatment, *** and left her weak and nervous and permanently injured to her damage" in a sum named. The answer traversed all the allegations of the complaint except that of the defendant's own corporate character, but at the trial the liability of the defendant was admitted, and the only question left for determination was what, if any, injury or damage was sustained by the plaintiff. At the hearing the plaintiff offered herself as a witness, and testified at length about the extent and nature of her injuries and physical condition, and detailed how she had consulted several physicians, some of whom she called as witnesses in support of her case. Among others, she consulted Dr. Marsh, to whom she submitted herself for examination, and obtained his opinion as to her condition, but did not take treatment from him. After plaintiff had rested without calling Dr. Marsh, the defendant had him sworn, and undertook to elicit from him testimony relating to what he had discovered about the plaintiff's physical condition at the examination mentioned. The plaintiff objected to his testifying, claiming that the physician could not be allowed to disclose any information which he had thus acquired. The court sustained the objection, and refused to allow Dr. Marsh to testify, and this is the error complained of by the defendant on its appeal from the subsequent judgment in favor of the plaintiff.

R.A. Leiter, of Portland (Wilbur, Spencer & Dibble, of Portland, on the brief), for appellant.

Jerry E. Bronaugh, of Portland, for respondent.

BURNETT J. (after stating the facts as above).

In chapter 4 of title 9 of the Oregon Code of Civil Procedure it is said (section 731, L.O.L.) that "all persons without exception, except as otherwise provided in this chapter who having organs of sense can perceive and perceiving can make known their perceptions to others may be witnesses. ***" In section 733, L. O.L., it is stated that "there are particular relations in which it is the policy of the law to induce confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: *** (4) A regular physician or surgeon shall not without the consent of his patient be examined in a civil action, suit or proceeding as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. ***" In section 734 it is provided that "if a party to the action, suit or proceeding offer himself as a witness that is to be deemed a consent to the examination of a wife, husband, attorney, clergyman, physician or surgeon on the same subject within the meaning of subdivisions 1, 2, 3, and 4 of the last section." It is only by virtue of the statute that the testimony of an attending physician or surgeon relating to the physical condition of his patient is excluded, for at common law the medical man was required to testify practically the same as any other witness. Pierson v. People, 79 N.Y. 424, 432, 35 Am.Rep. 524; Winters v. Winters, 102 Iowa, 53, 57, 71 N.W. 184, 63 Am.St.Rep. 428. In re Young's Estate, 33 Utah, 382, 94 P. 731, 17 L.R.A. (N.S.) 108, 126 Am.St.Rep. 843, 14 Ann.Cas. 596. Originally privileged communications were limited to those between an attorney and client, and many statutes have been passed in the various states extending this rule to physician and patient. Some enactments impose this restriction without any qualification. Others make an exception where the patient shall definitely waive the privilege or give an express consent. Under laws of the latter sort, the authorities are not in accord on the subject of what shall be deemed a consent to the examination of the attending physician. Some hold that there must be an express waiver at the time of the trial. Such a case is Western Travelers' Accident Association v. Munson, 73 Neb. 858, 103 N.W. 688, 1 L.R.A. (N.S.) 1068; also, Met. St. Ry. v. Jacobi, 50 C.C.A. 619, 112 F. 924. Others, like Hunt v. Blackburn, 128 U.S. 464, 9 Sup.Ct. 125, 32 L.Ed. 488, hold that a party testifying on the subject himself must be held to have waived the privilege independent of any statute defining what shall be a waiver. In all the cases cited in the briefs before us the statutes have either required an express consent to the examination of the physician, or have failed to define what is meant by the terms "waiver" and "consent," or have made no exception to the restriction. Our attention...