Hamel v. Southern Ry. Co. in Mississippi

• Decision Date: 12 March 1917
• Docket Number: 18845
• Citation: 74 So. 276,113 Miss. 344
• Court: Mississippi Supreme Court
• Parties: HAMEL v. SOUTHERN RY. CO. IN MISSISSIPPI

74 So. 276

113 Miss. 344

HAMEL v. SOUTHERN RY. CO. IN MISSISSIPPI

No. 18845

Supreme Court of Mississippi

March 12, 1917

Division A

APPEAL from the circuit court of Sunflower county, HON. H. P FARISH, Special Judge.

Suit by Myrtle Hamel against the Southern Railway Company in Mississippe. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and case remanded.

Jas. R McDowell, for appellant.

The court erred in permitting Dr. S. T. Rucker to testify. This physician's testimony came within the privilege of Section 3695 of our Code, as a privileged communication, not to be disclosed without the consent of patient or his represenatives. It is contended that this privilege was waived because at the trial of the former case--No. 16496, 64 So. 847--another physician who treated the deceased had testified. Dr. Rucker did not testify in the trial of the first case, and he is not now the witness of the plaintiff but was put on the stand by the defendant before any physician for the plaintiff had testified. So, our court must now decide whether the testimony of another doctor, in another case, on a different cause of action (growing out of the same accident, however), is a waiver of the privilege by the representatives of the patient. Our court has never passed on this point, and I find no case exactly in point in the books. In the Messina Case, 67 So. 963, the plaintiff himself testified but did not put any physician on the stand. The court there very properly held that the defendant Railroad Company could not introduce a physician, even though that physician was not employed by the plaintiff nor called in by him. Baxter v. Cedar Rapids, 105 Iowa 599, Dotton v, Albion, 57 Mich. 575; Mellor v. Railroad Co., 105 Mo. 455; Hope v. Railroad Co., 110 N.Y. 643.

In the case of Epstein v. Railroad Co., 48 L. R. A. (N. S.) 394, the authorities are collected, but I do not there find a case exactly in point. It will be seen that under this heading, at the bottom of page 399, the authorities seem to hold that where two or more physicians attend patients at different times, the examination by one does not operate as a waiver of the privilege as to the others, although they attend patient for the same illness. 10 Enc. Ev. 154, and notes; Briesenmeister v. Knights of Pythias, 81 Mich. 525.

"Statutes making incompetent the testimony of physicians and surgeons should be liberally construed." 10 Enc. Ev. 164.

The court erred in granting instruction number 4 requested by the defendant. Regardless of any other point in the case, I feel so sure the court will reverse the judgment of the trial court because of the granting of this instruction, that I would be willing to submit the case entirely on this one point.

Section 1985 of our Code established a rule of evidence. This section has been construed by our court as often as any other section in the code, and it is well settled that the plaintiff has no other burden than to show that the injury "was inflicted by the running of the locomotives or cars of such company, and this "shall be prima-facie evidence of the want of reasonable skill and care."

Instruction number 4 places upon plaintiff a burden which the law expressly exempts her from bearing. The plaintiff did not have to "prove by a preponderance of the evidence" that her husband "was injured by the negligence of the defendant;" and this instruction not only places this heavy burden upon her to satisfying the jury by a preponderance of evidence, but announces a rule of evidence exactly in conflict with the statute. Conflicting or contradictory instructions furnish no correct guide to the jury, and the giving thereof is erroneous." 38 Cyc. 1604.

"When an erroneous instruction is given, the error is not cured by the giving of another setting out a rule in direct conflict with the rule stated in the erroneous instruction; the contradiction between the two leaves the jury without any safe guide and is of itself improper." House v. Fultz, 13 S. &. M. 39; Southern Ry. Co. v. Kendrick, 40 Miss. 344, 90 Am. Dec. 332; Herndon v. Henderson, 41 Miss. 584; Railroad Co. v. Miller, 40 Miss. 45; Railroad Co. v. McGowan, 82 Miss. 603, 46 So. 55.

Two cases were decided by this court last week (Feb., 19), which re-affirm this doctrine. See Stevenson v. Railroad Co., No. 18836, and Thomas v. Ry. Co., No. 18830.

In the Stevenson Case the jury was instructed that if they were "in doubt about this proposition and cannot say of a certainty which was the cause of the damage" then they should return a verdict for defendant.

Our court reversed the case of Gentry v. Railroad Co., 67 So. 849, which contained an instruction requiring the plaintiff to remove "by a clear preponderance of the evidence" any doubt which might be in the minds of the jury.

There can be no doubt about this error, and, as above stated, the case must be reversed for this error if for no other.

The court fell into error in giving instruction number 5 for the defendant and in refusing certain instructions requested by the plaintiff, and in thus announcing to the jury a theory of law which precluded the plaintiff from a recovery unless the injury was directly responsible for the death of appellant's husband.

It was plaintiff's theory that, even though her husband died of pellagra, it was superinduced or his condition aggravated and the development of the disease hastened, because of his lack of power to resist its ravages after this serious injury. According to the theory of the law as announced by the court, death must be practically instantaneous, or at least must follow shortly after the injury, in order that a recovery may be had. The law seems to be to the contrary.

Frank E. Everett, for appellant.

We submit that the ruling of the court, in allowing Dr. Rucker to testify, was the grossest sort of error. Mr. Hamel had by his family, and local physician, been taken to Memphis, and placed in the Lynhurst Sanatorium, in the care and custody, and for treatment by Dr. Rucker, as his physician, and certainly, under section 3695 of the Code of 1906, which provides that: "All communications made to a physician or surgeon by a patient under his charge are hereby declared privileged."

And under the case of the Y. & M. V. R. R. Co. v. V. P. Messina, reported in the 67 So. 963, decided by this court at the March, 1915, term, the stamp of disapproval is put upon such party's testimony. This court, in holding these communications between physician and patient to be privileged, said: "And the physician, however willing he may be to violate the confidence of this patient, will not be permitted to do so, by the wise provisions of the Statute."

In other words unless he is called to the stand by the plaintiff himself, as the statute provides, this court has said, and very properly, so that he is absolutely incompetent to testify when offering himself as a witness, or offering to testify for the other party, over the objection of his patient. I could cite the court to numerous authorities holding the same thing, but as this court has so recently settled that question, I will not burden you with a list of authorities.

It may be said by counsel for appellee that we have waived our rights to object to the testimony of Dr. Rucker, because we afterwards placed Dr. Kent on the stand, but I call the court's attention to this fact, that the fact that Dr. Kent was in rebuttal placed upon the stand by the plaintiff could not prejudice our rights, for it was only to clear up some of the testimony of Dr. Rucker that Kent was placed on the stand. The court will see by reference to the testimony of Dr. Rucker, that I was trying to get from him an opinion, which he left so clouded with the jury that it was necessary for the plaintiff, after the defendant had introduced this sort of proof, to show by same responsible physician that even though Hamel had pellagra that the injuries would have augmented and accelerated disease to such an extent as to hasten his death.

Instruction number four is so plainly erroneous that I hardly know how to present it to the court. Quoting it literally, it is as follows: "The court instructs the jury that the law is that before the plaintiff can recover against the defendant in this case, that she must prove by a preponderance of the evidence to your satisfaction, first, that J. B. Hamel was injured by the negligence of the defendant, and, second, that the death of the said J. B. Hamel was caused by such injury, and unless she has so proven, then your verdict must be for the defendant."

This instruction is squarely in the face of section 1985 of the Code, which provides that in all actions against Railroad Companies, for damages done to them, or property, proof of injury inflicted by the running of locomotives or cars of such company shall be prima-facie evidence of the want of reasonable skill, and care, on the part of the servants of the company, in reference to such injury. This section of the code has been construed in this court so often that it seems impossible for a judge to commit error in granting instructions in this sort of a case. As far back as Railroad Company v. Hamilton, 62 Miss. 503; Railroad Company v. Doggett, 67 Miss. 250, it has been held that where the injury was shown to have been inflicted by the running of a locomotive or cars that the Railroad Company must exonerate itself from liability by explaining how the injury occurred. In other words the statute makes a prima-facie case of negligence when the facts show that the injury complained of was done by a running car or locomotive, and shifts the burden then to the Railroad Company, and this court, in case after case,...