Harpman v. Devine, 26377.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtMYERS
Citation10 N.E.2d 776,133 Ohio St. 1
Docket NumberNo. 26377.,26377.
Decision Date06 October 1937

133 Ohio St. 1
10 N.E.2d 776


No. 26377.

Supreme Court of Ohio.

Oct. 6, 1937.

Appeal from Court of Appeals, Mahoning County.

Action by C. A. Harpman against James A. Devine, receiver of the Central Savings & Loan Company. From a judgment of the Court of Appeals reversing a judgment of the Court of Common Pleas for plaintiff, plaintiff appeals.-[Editorial Statement.]

Judgment of the Court of Appeals reversed, and that of the Court of Common Pleas affirmed.

[10 N.E.2d 776]

Syllabus by the Court.

1. Where, in an action for damages for personal injuries, the plaintiff on direct examination

[10 N.E.2d 777]

testifies that his general physical condition was good before an accident, such declaration alone, without mention of any treatment by or communication to or from any physician, is not a waiver of the protection of Section 11494, General Code, forbidding a physician to testify concerning treatments or communications without express consent of the patient.

2. Where a patient voluntarily testifies as to his general physical condition, such testimony will not enlarge the term ‘subject’ as used in Section 11494, General Code, so as to permit a physician to testify, without the express consent of the patient, concerning treatments for a specific ailment of the patient.

3. Merely answering questions as to treatments from physician in response to questions on cross-examination does not waive the privilege under Section 11494, General Code. Such testimony is not voluntary within the purview of the statute.

WEYGANDT, C.J., and ZIMMERMAN, J., dissenting. dissenting.

The parties will be referred to as in the trial court. The plaintiff, C. A. Harpman, filed this action in the court of common pleas of Mahoning county against James A. Devine, receiver of the Central Savings & Loan Company, defendant, for damages for personal injuries alleged to have been sustained through the negligence of the defendant.

It is claimed that defendant negligently suspended from the Central Tower building, of which he had control as receiver, a fire hose in such a manner that a violent wind caused the hose to break a window, knocking glass against the plaintiff thereby causing the injuries concerning which complaint is made.

In the court of common pleas a verdict was returned for the plaintiff and thereafter a motion for a new trial was filed and overruled. The case was then taken to the Court of Appeals by the defendant on questions of law, there being two principal assignments of error: The first, that the trial court erred in excluding the testimony of one Dr. Harry Fusselman, and second, that the court had erred in not directing a verdict for the defendant at the close of the plaintiff's evidence and at the close of all of the evidence. The Court of Appeals found no error in the second assignment but reversed the court of common pleas on the ground that the court had erred in excluding the testimony of Dr. Fusselman.

At the trial in the court of common pleas the plaintiff offered himself as a witness and upon direct examination testified as follows: ‘Q. Will you just tell us what your general physical condition has been previous to July, 1934? A. Why, I have been good; it was good I should say.’

The date of the accident was July 6, 1934. Upon cross-examination by counsel for defendant the plaintiff answered that he had consulted various physicians before the time of the accident, including Dr. Fusselman. The following will illustrate the character of his testimony on cross-examination.

Questions by counsel for defendant:

‘Q. What did Dr. Fusselman take care of you for, what was the matter with you? A. I sometimes think he didn't know himself; that is the reason I left him.

‘Q. You didn't go to Dr. Fusselman the same day you had this accident, did you? A. I should say not. I had ceased going to see him about anything for many moons, many months.

‘Q. What had he treated [you] for, do you know? A. I don't think he knew; he gave me a tonic.’

After the plaintiff had rested his case the defendant called as a witness on his behalf, Dr. Harry Fusselman, whose name was mentioned in the cross-examination of plaintiff.

By counsel for defendant:

‘Q. Going back to December 8, 1933, I wish you would tell us what his complaints were, what treatment you gave him and all about your treatment from December 8, 1933, to July 6, 1934. (Plaintiff objected; objection was overruled and exception noted.)

‘Answer by Dr. Fusselman: I don't know as I have permission to give that. It is under privileged communication. * * *

[10 N.E.2d 778]

‘Court: I will let the doctor settle this. It's a question of privileged communication and the doctor says he hasn't yet received permission to divulge any communication made by Mr. Harpman to him, and unless that is given, the doctor cannot testify.

‘Mr. Betras: I object.

‘Court: You object to any communication that may have been made. I will sustain it. (Defendant excepts.)

‘Q. Tell us what treatments you gave him. (Plaintiff objects.)

‘Court: Sustained. Once you open the door to talk about treatment there may be injected into this law suit something about whatever confidential communication was had between the patient and doctor.

‘Mr. Pfau: Exception, and the witness, if permitted to answer, would testify that the treatment was for pernicious anemia.’

The plaintiff filed a motion to certify the record to this court, assigning for error the action of the Court of Appeals in reversing the court of common pleas in respect to the exclusion of testimony, while the defendant filed a cross-motion to certify, assigning for error, the action of the Court of Appeals in affirming the court of common pleas in not directing a verdict for the defendant. The cross-motion of the defendant was denied and the motion of the plaintiff to certify was allowed.

Peter B. Betras and I. Freeman, both of Youngstown, for appellant.

William E. Pfau, of Youngstown, for appellee.

MYERS, Judge.

We have for decision the question of whether the testimony of the plaintiff constituted a waiver which would permit admission of a physician's testimony, otherwise privileged under Section 11494, General Code, reading in part as follows:

‘The following persons shall not testify in certain respects:

‘An attorney, concerning a communication made to him by his client in that relation, or his advice to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient. But the attorney or the physician may testify by express consent of the client or patient; and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.’

The court of common pleas ruled the testimony of Dr. Harry Fusselman inadmissible while the Court of Appeals held contrary.

There is no claim that express consent was given by the plaintiff for Dr. Fusselman to testify. That element of the statute may, therefore, at the outset be excluded from consideration. That leaves only the question of a possible waiver.

The ‘subjects' privileged under the statute are ‘communications' and ‘advice.’ The relationship between physician and patient is protected and privileged under the law, not for the benefit of the physician, but solely for the patient. Since there was no express consent in the instant case, the lips of Dr. Fusselman were sealed under the law unless the plaintiff voluntarily testified respecting any communications or advice from the physician.

We have, therefore, the direct question whether Harpman, the plaintiff, voluntarily testified respecting any relationship with Dr. Fusselman that could fall within the purview of ‘communications' or ‘advice.’

The only testimony the plaintiff gave respecting Dr. Fusselman is to be found in his answers on cross-examination in response to questions by counsel for defendant. Is such testimony voluntary within the meaning of the state? Is it something brought forth ‘voluntarily’ by the plaintiff? He was obliged to answer the questions whether he desired to or not. Whatever was developed respecting Dr. Fusselman in corss-examination was brought out by the defendant. In that cross-examination of the plaintiff, it was counsel for defendant who directed the course of the inquiry. It was counsel for defendant who propounded the subjects of the questions which plaintiff was obliged to answer. The plaintiff had no choice about the matter. He was obliged to answer or be in contempt of court. Obviously, in such a situation the plaintiff did not ‘voluntarily’ testify respecting any ‘communications' or ‘advice’ from Dr. Fusselman. There was no waiver in the testimony on cross-examination. See Larson v. State, 92 Neb. 24, 137 N.W. 894;Walmer-Roberts v. Hennessey, 191 Iowa 86, 181 N.W. 798;Packard, Adm'x, v. Coberly, 147 Wash. 345, 265 P. 1082; and Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932.

In 5 Jones on Evidence, 4191, we find the following: ‘Furthermore, it is held that

[10 N.E.2d 779]

the testimony of the plaintiff on cross-examination as to communications made to his physician is not voluntary in such sense as to constitute a waiver of his privilege.’

But the claim of the defendant does not end here. Defendant maintains that, when plaintiff, in his direct examination which was voluntary, testified that his health before the time of the accident was good, he thereby testified on a ‘subject’ under the statute in such a manner as to permit the defendant to introduce testimony respecting his health during that period, including the communications, advice, and treatment of plaintiff by Dr. Fusselman. It is asserted that when plaintiff testified that his health was good he thereby ‘opened the door’ and waived the privilege accorded him by the statute. It is claimed that health is a subject that is not only a general term but necessarily includes communications and advice especially inthe case at bar. While there is much...

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    ...privileged communications during examination in a legal proceeding, those statements are not voluntarily made. See Harpman v. Devine, 133 Ohio St. 1, 6, 10 N.E.2d 776 (1937) (plaintiff s testimony on cross-examination was not voluntarily given, because he was obliged to answer the questions......
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