Hartley v. Calbreath
| Decision Date | 06 January 1908 |
| Citation | 106 S.W. 570,127 Mo.App. 559 |
| Parties | WILLIAM HARTLEY, Respondent, v. CLAUDE B. CALBREATH, Appellant |
| Court | Kansas Court of Appeals |
December 2, 1907;
Rehearing Denied 127 Mo.App. 559 at 569.
Appeal from Mercer Circuit Court.--Hon. George W. Wanamaker, Judge.
AFFIRMED.
Judgment affirmed.
Botsford Deatherage & Young and Ira B. Hyde & Son for appellant.
(1) The court erred in rejecting the evidence of Dr. Powell. The plaintiff, by bringing this suit, and especially by putting on the stand Drs. Skinner and Stacy, who had examined plaintiff the same as Dr. Powell had done, thereby waived his privilege to object to the testimony of Dr. Powell, or any other physician or surgeon who he might have thought would not make a good witness for him. 4 Wigmore on Evidence, sec 2389; Cramer v. Hunt, 154 Mo. 112; Beckwell v. Hosier, 10 Ind.App. 5, 37 N.E. 580; Maget v. Maget, 85 Mo.App. 6; Henry v. Sneed, 99 Mo. 407; Moeckel v. Heim, 134 Mo. 576. (2) The first seven instructions given for plaintiff are inconsistent, contradictory, misleading, unsupported by the evidence; they submit false and immaterial issues to the jury and are erroneous. Blashfield's Instructions to Juries, sec. 3373; Otto v. Bent, 48 Mo. 23; Henschen v. O'Bannon, 56 Mo. 289; Seymour v. Seymour, 67 Mo. 303; Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Bluedorn v. Railroad, 108 Mo. 439; Stroot v. Hayward, 37 Mo.App. 585. (3) The court erred in refusing the seventh, eighth and ninth instructions asked by defendant. (4) Defendant was entitled to a directed verdict, for the reason, first, that defendant treated the case with care and skill; second, plaintiff's former injury and contributory negligence in concealing it caused the result complained of, and third, plaintiff's refusal to permit defendant and his associate to apply the remedy which they prescribed, placed the responsibility on him and not on them. 22 Am. & Eng. Ency of Law (2d ed.), 804, 805, 806, 807, 811; Pike v. Honsinger, 155 N.Y. 209; Wood v. Wyeth, 94 N.Y.S. 360; McKenzie v. Cannan, 92 N.Y.S. 1063; Barker v. Lane, 49 A. 963; Tefft v. Wilcox, 6 Kan. 59; Pettigrew v. Lewis, 46 Kan. 78; Gramm v. Boener, 56 Ind. 497; Woodward v. Hancock, 52 N.C. 384; Champion v. Keith, 87 P. 845; Vanhooser v. Berghoff, 90 Mo. 487; Hibbard v. Thompson, 109 Mass. 286; Becker v. Janinski, 15 N.Y.S. 675; Whitesell v. Hill, 66 N.W. 894; Richards v. Willard, 35 A. 121, 176 Pa. St. 181; Haine v. Reese, 7 Phila. 138; McCandless v. McWha, 22 Pa. St. 261; Potter v. Warner, 91 Pa. St. 362; Geiselman v. Scott, 25 Ohio St. 86; Young v. Mason, 8 Ind.App. 271; Gramm v. Boner, 56 Ind. 497; Jones v. Angell, 95 Ind. 380; Haerring v. Spicer, 92 Ill.App. 449; Littlejohn v. Arbogast, 95 Ill.App. 606.
B. F. Kesterson, E. M. Harber and Orton & Orton for respondent.
(1) The court made no error in excluding the evidence of Dr. Powell. R. S. 1899, sec. 4659; Mellor v. Railroad, 105 Mo. 455; Holloway v. Kansas City, 184 Mo. 19; Arnold v. Maryville, 110 Mo.App. 254; Ashby v. Botkins, 160 Ind. 170; 66 N.E. 462; Lane v. Boicourt, 128 Ind. 420; 27 N.E. 1111; Elliott on Evidence, sec. 636; Insurance Co. v. Miller, 100 Ind. 92; 50 Am. Rep. 769; Williams v. Johnson, 112 Ind. 278; 13 N.E. 872; Barker v. Steamship Co., 157 N.Y. 693; 51 N.E. 1089; Railroad v. Shepherd, 29 Ind.App. 65; N. E. 765; Hope v. Railroad, 110 N.Y. 643; 17 N.E. 873. (2) The court made no error in granting instructions prayed by plaintiff. It clearly presents the issue under the proof and the first and second count of the petition. The plaintiff had a right to state his case by the two counts so as to meet the evidence as it should appear on the trial. Rinard v. Railroad, 164 Mo. 270; Hess v. Granz, 90 Mo.App. 493. (3) The court made no error in refusing the seventh, eighth and ninth instructions asked for by defendant. Meyers v. Railroad, 45 Mo. 137; Kendengers v. Railroad, 79 Mo. 207; Noyes, Norman & Co. v. Cunningham, 51 Mo.App. 194; Weil v. Schuartz, 21 Mo.App. 382; Barr v. Kansas City, 105 Mo. 557; Connolly v. Press Blg. Co., 166 Mo. 447; Dixon v. Atkinson, 86 Mo.App. 29; State v. Nelson, 166 Mo. 191; Klockenbrenk v. Railroad, 81 Mo.App. 351; Wolfe v. K. & L. of H., 160 Mo. 675.
--The defendant is a physician and in his professional capacity attended plaintiff whose shoulder was dislocated. This action is for damages for alleged malpractice. The trial resulted in plaintiff's favor.
It appears that plaintiff was thrown from a horse and dislocated his shoulder. Defendant was called and engaged to attend him. The evidence tended to show that he reduced or "set" the shoulder and pronounced it "all right." That he put plaintiff's arm in a bandage or "sling" suspended from around his neck, but he did not secure the arm to the body so as to prevent the upper portion from being free to move. He returned next day when plaintiff complained of severe pain. He then took off the bandage or, as otherwise expressed, took it out of the sling and left it free. Plaintiff continued to suffer great pain and his shoulder not appearing to be doing well, he was at defendant's office and there in presence of another physician the shoulder was examined, and not being thought to be in proper place another effort was made. Afterwards, yet another effort was made by the use of "pulleys." But after all, according to the evidence in plaintiff's behalf, the shoulder was not properly reduced or "put in place," whereby he has lost much of the use of that arm and has suffered great pain.
Plaintiff's theory is that defendant either failed in the first place to reduce the dislocation, or if he did reduce it, that he left it so improperly bandaged and cared for as that his arm had too much freedom of movement and the shoulder would not remain in place. And that he was negligent and unskillful in not sooner discovering that the shoulder was not properly reduced and using immediate means to put it in proper condition.
The defendant offered Dr. Powell as a witness. On plaintiff's objection he was not permitted to testify, on the ground that whatever he knew about the case was privileged under the statute. [Sec. 4659, R. S. 1899.] It appears that several months after defendant's treatment of plaintiff, the latter called on the witness as a physician and was examined by him. There can be no doubt of the correctness of the court's ruling. It is true that in cases of this nature, the physician being a party, the necessity of the matter makes him competent to testify in his own behalf concerning communications between himself and his patient, notwithstanding the statute. [Cramer v. Hurt, 154 Mo. 112, 55 S.W. 258.] Otherwise the physician might be without means of protecting himself. And so a consulting physician has been held competent to testify concerning those things which transpired at the consultation. This was put upon the ground that the plaintiff himself had removed the privilege of secrecy. [Lane v. Boicourt, 128 Ind. 420, 27 N.E. 1111.] Some of the language used in the opinion in that case, is perhaps broader than would be justified by the views entertained in this State; but restricted as we have stated, we believe it a proper statement of the law as held by our courts. In this case the defendant and consulting physician were permitted to testify without objection.
But the offer of Dr. Powell in defendant's behalf brings up altogether different considerations. He was in no way connected with defendant's attendance upon the plaintiff. He examined plaintiff in his professional capacity with a view to seeing what could be done for him. Defendant does not answer this position by saying that the secrecy of the whole matter had been removed by the plaintiff bringing the present action and himself testifying and by his having made it necessary for the defendant to testify and therefore the privilege did not longer exist. For the secrecy and privilege of the communications to Powell had not been removed. It has been directly held by the Supreme Court that a waiver as to one physician is not a waiver as to others who may have attended upon the person making the waiver. The statute, says the court, "does not exclude the evidence by reason of its inherent character, but only when given by the persons within its purview." [Mellor v. Railroad, 105 Mo. 455; Barker v. Cunard Ship Co., 36 N.Y.S. 256, Affd. 157 N.Y. 693, 51 N.E. 1089.]
We held in Arnold v. Maryville, 110 Mo.App. 254, 85 S.W. 107, that the statute in privileging all necessary information and communications received by the physician from the patient, did not apply to a physician who was called upon, not with a view of giving the patient attention and relief, but for the purpose of qualifying himself as a witness. But in this case the trial court and counsel first ascertained from Powell that nothing was said between him and plaintiff about a suit, or his being a witness, but that he was consulted with a view to "relieve him (plaintiff) of his distress."
Defendant in support of his view that the bringing of the suit by plaintiff waived all privileges conferred by the statute, cites the following from 4 Wigmore on Evidence, section 2389 (the italics are the author's): ...
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