Hobson v. McLeod

• Citation: 165 Miss. 853,147 So. 778
• Decision Date: 01 May 1933
• Docket Number: 30582
• Court: United States State Supreme Court of Mississippi
• Parties: HOBSON v. MCLEOD

147 So. 778

165 Miss. 853

HOBSON v. MCLEOD

No. 30582

Supreme Court of Mississippi

May 1, 1933

Division A

1 AUTOMOBILES.

Where wife was not in automobile owned by her, and did not participate in negligence of husband who was using automobile for his own business, wife, as owner, was not liable for husband's negligence.

2 AUTOMOBILES.

Family purpose doctrine in respect to operation of automobiles is not recognized in Mississippi.

3 TRIAI. Instruction that jury should not draw unfavorable inferences against defendant because he did not introduce plaintiff's physician as witness held reversible error as authorizing jury to draw unfavorable inference to plaintiff (Code 1930, section 1536).

Instruction in substance that any information gained by physician from patient while relationship of physician and patient existed was privileged, and that, though plaintiff could introduce his physician as witness, still defendant was not permitted to do this, and that jury should draw no unfavorable inferences against defendant because he did not introduce plaintiff's physician as witness, was erroneous, where neither side called physician as witness, since it was direct invitation to jury to draw inference unfavorable to plaintiff because he failed to offer physician as witness to testify regarding his injuries.

4. EVIDENCE.

Jury had no right to draw any inference against plaintiff because he failed to offer his physician as witness (Code 1930, section 1536).

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Action by J. H. Hobson against R. B. McLeod. From the judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

T. J. Wills, of Hattiesburg, for appellant.

The giving of the instruction as to introduction of physician was error.

Section 1536, Code of 1930.

If it is permissible, when a party to a litigation, fails to call his physician and surgeon, as a witness, for the court to give the instruction complained of, then in place of the privileged communication statute, becoming a shield to protect the patient, it becomes a sword to destroy him.

Davis v. Elzey, 120 Miss. 789; Hunter v. Hunter, 127 Miss. 683; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455; Y. & M. V. R. R. v. Decker, 150 Miss. 621; Provident Life & Accident Insurance Co. v. Jemison, 153 Miss. 53; Mississippi Power & Light Co. v. Jordan, 143 So. 483.

The damages in this case are wholly inadequate.

Y. & M. V. R. R. Co. v. Dees, 121 Miss. 439; Ozen v. Sperier, 150 Miss. 458.

Under the proven facts in this case, the judgment should run against both the husband and the wife and it was error to have peremptorily charged the jury to find for Mrs. R. B. McLeod.

Cowart v. Lewis, 117 So. 531.

Stevens & Heidelberg, of Hattiesburg, for appellee.

This court has definitely repudiated the family purpose doctrine.

Smith v. Dauber, 125 So. 182, 155 Miss. 694.

The granting of an instruction correctly announcing the law with reference to the Privilege Communication Statute is proper and correct, and the instruction given was a correct announcement of the law.

The general rule that it is error for counsel to comment on the failure of the other party to introduce a witness applies only when such witness is equally available to both parties.

Mississippi Central Railroad Company v. Robinson, 64 So. 838, 106 Miss. 896; Valley Dry Goods Company v. Buford, 75 So. 252, 114 Miss. 414.

The jury had the appellant before them; they saw his physical appearance; they saw his manner of testifying; and they saw him as he approached and left the witness stand. Under these circumstances, how can this court say with satisfaction that the verdict of the jury is so small as to evince passion or prejudice on their part.

Wilson v. Rich, 141 So. 287.

McGowen, J., COOK, J., took no part in the decision of this case.

OPINION

McGowen, J.

Hobson, the appellant, sued R. B. McLeod, appellee, for damages for personal injuries alleged to have been received by him on account of the negligent driving of an automobile by the appellee at an excessive rate of speed. The defense offered was that the proximate cause of the injury to appellant was accidental, due to a flat tire on the car appellee was driving. Evidence and inferences therefrom supporting both theories were submitted to a jury, which returned a verdict in favor of appellant for the sum of four hundred dollars. The appellant also sued Mrs. R. B. McLeod, wife of the appellee, as owner of the car, and the court below granted to her a peremptory instruction.

It is first assigned that the court was in error in granting to Mrs. McLeod a peremptory instruction. The only evidence in the record is to the effect that Mrs. McLeod was the owner of the car, but she in no way participated in the negligence of her husband, R. B. McLeod, as she was not present when the car was being driven. McLeod and Hobson were using the automobile for the transaction of business of the appellee, R. B. McLeod, alone. The relation of master and servant as between Mr. and Mrs. McLeod was not suggested in the record. The case of Cowart v. Lewis, 151 Miss. 221, 117 So. 531, 61 A.L.R. 1229, has no bearing upon the case at bar. There the husband and wife owned the car jointly, and the husband, who was present and seated by his wife, knew of and participated in her negligence in driving the car at the time of the accident. No such case is presented here.

This court does not recognize the family purpose doctrine. See Smith v. Dauber, 155 Miss. 694, 125 So. 102.

There was evidence tending to show that appellant in this case was seriously and painfully injured, and the verdict for four hundred dollars was but slight compensation for the injuries alleged, and which are practically undisputed.

The jury found on an issue of fact that R. B. McLeod was negligent and liable for damages; so liability in this case is established.

The court granted on behalf of the appellee the following instruction: "The court instructs the jury for the defendant that, under the law, any information or knowledge gained by a physician from his patient while the relationship of physician and patient exists is privileged; and in this case, you are instructed that under this law, while the plaintiff could introduce Dr. Ross as a witness in his behalf and prove any knowledge he gained of plaintiff's physical condition while he was plaintiff's physician, still the defendant is not permitted to do this, and you shall, therefore, draw no unfavorable inferences against the defendant because he did not introduce Dr. Ross as a witness."

The evidence in this case shows that Dr. Ross was the attending physician of Hobson, and that the relation of physician and patient existed between them as to the injury complained of. Neither side called Dr. Ross as a witness. It was manifest error for the court to grant this instruction. It was a direct invitation to the jury to draw an inference unfavorable to the appellant, Hobson, because he failed to offer the physician as a witness to testify as to his injuries. The giving of this instruction was an entire departure from the record in this case. The jury had no right to draw any inference against the appellant because he failed to offer the physician as a witness.

Section 1536, Code 1930, declares that all communications made to a physician by a patient are privileged, and only a patient can waive this privilege. It was therefore not within the province of the court to put upon the patient the undue burden of apparently suppressing testimony available to him when, under the law, he had the right not to present it. This privilege has been upheld by this court in numerous cases, especially in the cases of U.S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So....