Jones v. City of Caldwell

• Decision Date: 26 February 1913
• Citation: 130 P. 995,23 Idaho 467
• Parties: E. C. JONES and ELIZABETH JONES, Husband and Wife, Respondents, v. CITY OF CALDWELL, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

130 P. 995

23 Idaho 467

E. C. JONES and ELIZABETH JONES, Husband and Wife, Respondents, v. CITY OF CALDWELL, a Municipal Corporation, Appellant

Supreme Court of Idaho

February 26, 1913

PERSONAL INJURY-PRIMARY CAUSE-DISEASED CONDITION-PRIVILEGED INFORMATION-TESTIMONY ATTENDING PHYSICIAN.

1. Evidence examined, and held sufficient to go to the jury as tending to establish the fact that the plaintiff sustained injuries from falling on a defective sidewalk and that the fall was the primary cause of the injuries sustained.

2. Where a woman walking upon the sidewalk of a city fell through a hole in the walk, and it was thereafter found necessary for her to undergo a surgical operation, and there was doubt and conflict in the evidence as to whether the operation was caused primarily by the fall or by a previously existing diseased and affected condition of the parts operated upon, and expert testimony introduced was indefinite and uncertain as to the primary cause which rendered the operation necessary, the fact that the operation was considered necessary by the attending physicians soon after the accident occurred and that the operation was actually performed are circumstances which the jury had a right to consider in concluding that the fall was the primary cause of the operation and of the consequent damages sustained.

3. Where the attending physician deems a surgical operation necessary upon his patient and another physician or surgeon is called to assist in the performance of the operation and actually performs the operation or assists therein, and subsequently upon a trial which brings in issue the facts and circumstances which led up to and rendered necessary the operation, any information acquired by the attending physicians at the operation or subsequently acquired by examination of the parts removed by the operation, is privileged information under the provisions of sec. 5958 of the Rev. Codes, and cannot be given in evidence without the consent of the patient.

4. The facts that certain information was gathered from examination and inspection of the injured or diseased parts removed by the operation a considerable time after the operation had been performed, and the physician had acted and prescribed for the patient, does not change the privileged character of the information and permit the physician to testify concerning the same.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damages. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

H. E Wallace and J. J. Plowhead, for Appellant, cite no authorities.

W. A Stone and John F. MacLane, for Respondents.

This court has laid down the rule in Gerber v. Nampa &amp Meridian Irr. Dist., 19 Idaho 765, 116 P. 104, that "A decision of the supreme court on appeal established the law of the case for the guidance of the trial court and for the purposes of a subsequent appeal"; and where the case came to it on a second appeal, that "the only question which arises now is whether or not the trial court followed the law announced in the prior decision of this court as applied to the evidence adduced on such new trial."

AILSHIE, C. J. Stewart, J., concurs, SULLIVAN, J., Concurring in the Conclusion.

OPINION

AILSHIE, C. J.

This action was commenced for the recovery of damages from the city of Caldwell for injuries sustained by falling through a defective sidewalk. The case went to trial and a verdict was returned in favor of the plaintiff for $ 850, and she appealed to this court, alleging errors committed against her in the course of the trial. The judgment was reversed and the cause was sent back for a new trial. (Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110.) The case was again tried in the district court, and a verdict and judgment were rendered and entered in favor of the plaintiff for $ 2,500, and the defendant thereupon appealed.

The appellant has assigned three errors, which we will consider in the order in which they were presented.

1. It is urged that the evidence is insufficient to justify the verdict and judgment. The real cause of appellant's complaint as to the sufficiency of the evidence rests upon the nature of the injury or the cause from which the injury arose. The respondent contended on the trial in the lower court that the fall through the sidewalk rendered it necessary that she undergo a surgical operation, and that this would not have been necessary except for the fall through the sidewalk. The appellant insists that the evidence shows that this operation was rendered necessary by an infectious disease that the respondent had prior to the accident, and that the operation resulted therefrom and was not caused by the fall. It stands as an established fact that the operation was performed. The evidence shows that the respondent had been able to perform her duties as a nurse for a long time prior to this accident. It also shows that she was in ill health for a long while after the fall and operation. The operation which resulted in the removal of the Fallopian tubes was rendered necessary by reason of an infection which set in and the attendant pain and suffering. The evidence of the physician is by no means clear as to whether the primary cause for this was the fall or a previously existing diseased condition. As we view the evidence with reference to the previous condition of health of the respondent and her subsequent condition and the facts touching her medical examination and the surgical operation following, we think there was sufficient evidence to justify the jury in reaching the conclusion they arrived at, and we are not inclined to disturb the verdict on account of insufficiency of the evidence.

2. It is contended that the court erred in sustaining the respondent's objection to the following question asked of Dr. Miller: "Did you find the tissues broken down?" which question had reference to the condition of the Fallopian tube. It would have been entirely proper to allow this question answered, but we fail to find any prejudicial error in the ruling of the court. The record shows that the witness gave quite a full and detailed account of his examination and the conditions as he found them.

3. Special stress is placed upon the ruling of the court in sustaining respondent's objection to a question asked of witness ...