Holloway v. Kansas City
| Decision Date | 16 July 1904 |
| Parties | HOLLOWAY v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.
Reversed and remanded.
R. J Ingraham and L. E. Durham for appellant.
(1) Under the evidence of plaintiff she was guilty of such contributory negligence as to bar a recovery. For that reason the trial court should have set aside the verdict. Wheat v. St. Louis, 78 S.W. 790; Cohn v. Kansas City, 108 Mo. 387; Sindlinger v. Kansas City, 126 Mo. 315. (2) Plaintiff herself testified that she felt the walk tilt but kept going and did not look where she was stepping. Her own witnesses testified that it was light enough to see the hole in the walk a distance of half a block. In view of such evidence it was reversible error to instruct the jury that plaintiff had the right to presume that the walk was reasonably safe. Lynch v. Railroad, 112 Mo. 432; Payne v. Railroad, 129 Mo. 419; Bailey v Railroad, 152 Mo. 461; Schepers v. Railroad, 126 Mo. 670; Myers v. City of Kansas, 108 Mo. 487; Rapp v. Railroad, 106 Mo. 428; Nixon v Railroad, 141 Mo. 439; Moberly v. Railroad, 98 Mo. 186; Brannock v. Elmore, 114 Mo. 64. (a) By using the parenthetical clause, "in the absence of knowledge to the contrary," found in plaintiff's said instruction, the court told the jury that plaintiff had no knowledge of the condition of the sidewalk. In this respect the instruction assumes facts in evidence not to be true. (b) Said instruction is in direct conflict with defendant's instruction 5, relating to contributory negligence. Nixon v. Railroad, 141 Mo. 439; Weller v. Railroad, 120 Mo. 651. (3) The court erred in admitting in evidence the expert opinion of plaintiff's doctors as to the cause of her physical condition, based on the previous history of her case as they learned it from her. The correct method is to prove cause by hypothetical question based on facts in evidence. People v. Murphy, 101 N.Y. 130; Davidson v. Connell, 132 N.Y. 238; Railroad v. Shires, 108 Ill. 630; Heald v. Thing, 45 Me. 395; Railroad v. Frazier, 27 Kan. 463; U. S. v. Faulkner, 35 F. 730; Weatherbee v. Weatherbee, 38 Vt. 454; Greenleaf on Evidence (13 Ed.), sec. 440; Rogers on Exp. Tes. (2 Ed.), sec. 46, p. 116; Lawson on Exp. and Opin. Ev. (2 Ed.), p. 176. The physician can not relate in evidence the declarations of the patient as to her past history, but only as to "a present existing pain or malady." Ins. Co. v. Mosley, 8 Wall. 397; Railroad v. Roller, 100 F. 752; Hyatt v. Adams, 16 Mich. 180; Towle v. Blake, 48 N.H. 92. (4) The court erred in allowing Dr. Jones to answer the hypothetical question of plaintiff's counsel. Said question was too indefinite. Senn v. Railroad, 108 Mo. 142; Turner v. Haar, 114 Mo. 345; Smith v. Railroad, 119 Mo. 246; Russ v. Railroad, 112 Mo. 45; Smart v. Kansas City, 91 Mo.App. 586; Mammersburg v. Railroad, 62 Mo.App. 563. (5) Plaintiff's physician, Dr. Van Eman, was allowed to testify in detail as to the conversation between himself and his patient. The court properly ruled that plaintiff had waived the protection of the statute in this respect. But the court erred in refusing to allow said physician to testify as to what he found in his examination of the alleged injuries of plaintiff. The said conversation related to the nature and extent of the injuries; the protection of the statute was consequently waived as to what the doctor saw as well as to what he said. Mellor v. Railroad, 105 Mo. 455; Webb v. Railroad, 89 Mo.App. 604; Highfill v. Railroad, 93 Mo.App. 219; Morris v. Railroad, 148 N.Y. 88; Marx v. Railroad, 56 Hun 575; Rauh v. Deutscher Verein, 29 App. (N. Y.) 483. Information communicated by a patient to a physician and information of physician gained by observation are alike privileged under the statute. The patient ought not, as in this case, to be permitted to waive the protection of the statute as to part of such information only. Gartside v. Ins. Co., 76 Mo. 446; Thompson v. Ish, 99 Mo. 160; Morris v. Railroad, 148 N.Y. 88. (6) The court erred in rejecting the testimony of Dr. Mathis. Plaintiff waived the right to have the same excluded. Rauh v. Deutscher Verein, 29 App. (N. Y.) 483; authorities cited under point 5.
Henry J. Latshaw, Jr., for respondent.
(1) The general law of negligence in this State is that the court will not say plaintiff is guilty of contributory negligence unless the evidence discloses such a state of facts that reasonable minds could not honestly differ upon the question. (2) Plaintiff did not know the sidewalk was not reasonably safe, although she may have known it was not perfect. In nearly all cases of this character the plaintiff knows before he is actually injured that the sidewalk is not perfect still, this does not preclude him from presuming that it is "reasonably safe." In the Perrette case, 162 Mo. 248, plaintiff was injured in broad daylight, about 4 p. m. Therefore, if the instruction was proper in the Perrette case, it surely was in the case at bar. This instruction has been approved in Campbell v. City of Stanberry, 78 S.W. 292, and numerous other authorities in this State. (3) Appellant claims that a physician in forming his opinion in regard to the ailments of his patient should not take into consideration anything the patient says to him, but should be guided solely by his own observations in examining her. In other words, that a physician should go into the sick-room, examine his patient, and then prescribe either medicine or the surgeon's knife, without basing said prescription upon any facts which he may derive from his patient. This is the proper and inevitable deduction from appellant's argument. The decisions seem to make a very marked distinction between the propriety of allowing an expert medical witness who examined plaintiff solely for the purpose of testifying in the case, to base his opinion upon what the plaintiff says, and those cases in which the expert witnesses have been the attending physicians of the plaintiff, and have seen her and examined her and waited upon her for a long time before the trial. There is considerable doubt as to the propriety of allowing physicians under the former condition to base their opinion upon what is said to them by the patient. Abbot v. Heath, 84 Wis. 314; Quaife v. Railroad, 48 Wis. 526. But the overwhelming weight of authority is clearly in support of the proposition that it is not only proper, but it is best, that physicians should base their opinions largely upon what the plaintiff says and does in their presence. In fact, we think it is clear that the more thoroughly the attending physician goes into the history of the case, the more liable is his diagnosis or opinion to be right. In considering this question it is proper to keep in view two important facts: First, that the physicians whose testimony is attacked by appellant got their history of the case directly from the plaintiff herself, and not from third parties; second, that they were the attending physicians of plaintiff during her long illness following her injury, and saw her, and prescribed for her and treated her at divers times from the date of her injury to the date of the trial. As the statments were made to a medical man, for the purpose of receiving advice, they were competent and admissible. Bacon v. Charlton, 7 Cush. 581; Quaife v. Railroad, 48 Wis. 513; Aveson v. Kinnaid, 6 East 196; Palmer v. Crook, 7 Gray 418; Railroad v. Kennelly, 170 Ill. 512; Railroad v. Carr, 170 Ill. 478; Rowell v. City of Lowell, 11 Gray 420; Denton v. State, 1 Swan (Tenn.) 297; Railroad v. Talvey, 104 Ind. 409; Garfield v. Kirk, 65 Barb. 464; Joslin v. Grand Rapids, etc., Co., 53 Mich. 322; Plummer v. Ossipee, 59 N.H. 55; Davidson v. Cornell, 132 N.Y. 237; Roche v. Brooklyn, etc., Co., 105 N.Y. 294; Werely v. Persons, 28 N.Y. 345; Rogers v. Crain, 30 T. 284. (4) The evidence of Dr. Van Eman was objected to on the ground of privileged communications under section 4659, Revised Statutes 1889. Respondent says the evidence was clearly incompetent, for the following reasons: Plaintiff did not testify to any treatment the doctor gave, nor to anything the doctor did for her except that he gave her some capsules, nor to anything the doctor found, or did not find, the matter with her, nor to anything the doctor said, or did not say, was the matter with her; she did not even say why she discharged him. Plaintiff denied the conversation which Dr. Van Eman said took place between them, and which the doctor said was the cause of his discontinuing his services. The court permitted the doctor, over plaintiff's objection, to testify to that conversation. And appellant claims that since this conversation was permitted to go in evidence by the court, at appellant's request, therefore, respondent waived "in part" the protection of statute, and that she could not waive it in part and retain it in part. The answer to that contention seems to us very plain, namely: Respondent did not waive the statute in part, nor at all. This evidence went in over respondent's objections; it was appellant's witness, and it was a conversation that did not come within the purview of the statute; it was not "information necessary for the physician to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon." It was purely a conversation in regard to plaintiff's doctor bill, or in regard to the contemplated lawsuit. That is the ground upon which the trial court admitted this testimony, and it is the only ground upon which it could have been admitted. Hamilton v. Crowe, 175 Mo. 634; James v. Kansas City, 85 Mo.App. 20; Smart v. Kansas City, 91 Mo.App. 586; Hayworth v. Railroad, 94 Mo.App. 225. (5) Appellant complains that the trial court...
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