Harrington v. Hadden

• Citation: 69 Idaho 22,202 P.2d 236
• Decision Date: 18 January 1949
• Docket Number: 7417
• Parties: HARRINGTON v. HADDEN
• Court: Idaho Supreme Court

202 P.2d 236

69 Idaho 22

HARRINGTON v. HADDEN

No. 7417

Supreme Court of Idaho

January 18, 1949

Appeal from District Court, Second Judicial District, Clearwater County; A. L. Morgan, Judge.

Judgment reversed and remanded with directions to grant a new trial.

Verner R. Clements, of Lewiston, for appellant.

To call a physician as a witness to ones physical condition is a waiver of the privilege as to the knowledge acquired by other physicians of the same condition. 4 Wigmore on Evidence, Sec 2389; Northern Indiana public Service Co. v McClure, 1940, 108 Ind.App. 253, 24 N.E.2d 788; Metropolitan Life Ins. Co. v. Kaufman, 104 Colo. 13 87 P.2d 758; Liefson v. Herring, 210 Minn. 311, 298 N.W. 41; Denny v. Robertson, 352 Mo. 609, 179 S.W.2d 5.

The proof of loss of profits as a basis for recovery thereof must pass the realm of conjecture, speculation or opinion, not founded on facts, and must consist of actual facts from which reasonable accurate conclusion regarding cause and the amount can logically be drawn. Randles v. Nickum & Kelley Sand & Gravel Co., 169 Or. 284, 127 P.2d 347; Delashmitt v. Journal Publishing Co., 166 Or. 650, 114 P.2d 1018, 135 A.L.R. 1175.

As the respondent's business did not rest alone on the personal skill and labor of respondent, testimony of profits therefrom is not admissible as bearing on damages. Chicago R. I. & P. Ry. Co. v. Hale, 8 Cir., 186 F. 626; Schwartz v. Eitel, 7 Cir., 132 F.2d 760; Lehman v. Amsterdam Coffee Co., 146 Wis. 213, 131 N.W. 362; Lombardi v. California Street R. Co., 124 Cal. 311, 57 P. 66.

Felton & Jones, of Lewiston, for respondent.

As a general rule, the fact that the parties voluntarily engaged in a combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other. Adams v. Waggoner, 33 Ind. 531, 5 Am.Rep. 230; McCulloch v. Goodrich, 105 Kan. 1, 181 P. 556, 6 A.L.R. 386; McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Colby v. McClendon, 85 Okl. 293, 206 P. 207, 30 A.L.R. 196.

"* * * the great weight of authority * * * and the recognized rule is that, where two parties fight voluntarily, either party may recover from the other the actual damages suffered, and the consent of the plaintiff to engage in the combat will not bar his suit to recover." Morris v. Miller, 83 Neb. 218, 119 N.W. 458, 20 L.R.A.,N.S., 907, 131 Am.St.Rep. 636, 17 Ann.Cas. 1047; Strawn v. Ingram, 1937, 118 W.Va. 603, 191 S.E. 401.

To enhance the damages by aggravating circumstances, it is competent for plaintiff to prove any acts or declarations indicative of the existence of malice or ill will on the part of the defendant toward him at the time the assault was made. Georgia Land Co. v. Davis, 28 Ga.App. 398, 111 S.E. 219; 6 C.J.S., Assault and Battery, § 43.

We think the general rule recognized by the weight of authority is that exemplary or plenary damages may be allowed where the injury complained of is attended by acts of the wrongdoer which show wilful malice, wanton, gross, or outrageous. The evidence must show the malice or facts from which the same may be inferred. Klam v. Koppel, 1941, 63 Idaho 171, 118 P.2d 729; Unfried v. Libert, 20 Idaho 708, 728-729, 119 P. 885.

It is well established in most jurisdictions that exemplary damages in excess of compensation for the actual injury are recoverable in an action for assault and battery where the wrongful act was committed recklessly, wantonly, or without provocation or excuse. Schlessman v. Brainard, 1939, 104 Colo. 514, 92 P.2d 749; 6 C.J.S., Assault and Battery, § 55, page 902.

Holden, Chief Justice. Givens, J., and Featherstone, Taylor and Sutphen, District Judges, concur.

OPINION

Holden, Chief Justice.

This is an action to recover general damages for personal injuries growing out of mutual combat between plaintiff and defendant, for exemplary damages, damages for loss of business and damages for the loss of earnings. The cause was tried November 24, 1947, by the court sitting with a jury. November 26, 1947, eleven jurors brought in a verdict for plaintiff Harrington for the sum of $ 12,500 and on the same day judgment was entered thereon for that amount, from which defendant Hadden appeals.

Numerous errors are assigned; however, only those deemed material and essential to a decision of the appeal will be discussed. Those deemed essential are:

1. May exemplary damages be recovered?

In Klam v. Koppel, 63 Idaho 171, 180, 118 P.2d 729, 733.

"We held in Unfried v. Libert, 20 Idaho 708, 728, 729, 119 P. 885, 891 (followed and approved in Gunnell v. Largilliere Company, Bankers, 46 Idaho 551, 559, 269 P. 412):

"'As we understand the rule of exemplary or punitive damages, they cannot be recovered unless the evidence shows clearly that the action of the wrongdoer is wanton, malicious, or gross and outrageous, or where the facts are such as to imply malice and oppression, in which case the law authorizes the court to allow a sum of money as punishment to the wrongdoer for the injury done.' And continuing:

"'We think the general rule recognized by the weight of authority is that exemplary or plenary damages may be allowed where the injury complained of is attended by acts of the wrongdoer which show willful malice, fraud, or gross negligence. The evidence, however, must show the malice and negligence, or facts from which the same may be inferred.'" (Emphasis in the opinion.)

Continuing the court said:

"It is contended 'the complaint fails to state facts sufficient to disclose malice, oppression, wantonness, etc., warranting punitive damages.' In Dwyer v. Libert, 30 Idaho 576, 586, 167 P. 651, 653, Ann.Cas.1918B, 973, we quoted with approval the following from Stark v. Epler, 59 Or. 262, 117 P. 276:

"'The rules of pleading do not require that the allegations relating to exemplary damages should be set out separately from the other averments of the complaint. Special damages must be grounded upon separate allegations, but exemplary damages are so intimately connected with general damages that, if the general allegations are sufficient to show the wrong complained of was inflicted with malice or oppression, or other like circumstances, the complaint will be sufficient to authorize the infliction of punitive or exemplary damages.' We then held:

"'It is not necessary to the recovery of exemplary damages that they should be specially claimed in the complaint, but such damages may be recovered under a claim for damages generally.'"

2. May a physician be examined concerning injuries sustained by his patient, where the patient himself testifies and calls other physicians to testify to his injuries?

Section 16-203, I.C.A., provides:

[Sec. 16-203] "Confidential relations and communications. -- There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person can not be examined as a witness in the following cases:

"1. * * *

"2. * * *

"3. * * *

"4. A physician or surgeon can not, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.

"5. * * *"

This court construed subdivision 4, supra, in Jones v. City of Caldwell, 20 Idaho 5, 15, 116 P. 110, 114, 48 L.R.A.,N.S., 119, where the same contentions, in substance, were made as are made in the case at bar.

This court in reviewing such contentions, said:

"The next assignment of error involves the question as to whether the plaintiff, by calling Dr. Miller, her regular physician, waived the privilege of objecting to the testimony of Dr. Stewart given her by subdivision 4 of section 5958, Rev.Codes [now sec. 16-203, I.C.A.], which is as follows:

"'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: * * *

"'4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.'"

After reviewing the cases cited in support of the above quoted assignment of error, this court held:

"We conclude that the decided weight of authority is in favor of the view that a waiver of the privilege as to one physician does not waive the privilege as to any other physician. It is also very clear that our statute forbids and prohibits the examination of a physician without the consent of the patient, and this privilege extends to the individual witness, and not to the consultation or transaction in which he was a physician. In other words, each individual physician is a witness within the meaning of this statute, rather than a number of physicians who may be present or participate in a consultation, being treated as one witness, as appears to be done by Prof Wigmore. As we view it, the plaintiff did not waive the privilege so far as Dr. Stewart is concerned, by calling Dr. Miller to testify for her, and, if the provisions of said section 5958 [Sec. 16-203, I.C.A.] resulted in the suppression of truth, that is a matter for legislative consideration. Counsel for defendant contends that Dr. Stewart was called to testify as an expert, and that his evidence should have been given to the jury for that reason. By calling a physician as an expert, the provisions of said section 5958 cannot be evaded and the witness permitted to base his opinions on information acquired while attending the patient. If that were permitted, the provisions of said statute would be without force or effect.

"We therefore conclude...