Madsen v. Utah Light & Ry. Co.

• Decision Date: 17 November 1909
• Docket Number: 2038
• Citation: 105 P. 799,36 Utah 528
• Parties: MADSEN v. UTAH LIGHT & RAILWAY COMPANY
• Court: Utah Supreme Court

105 P. 799

36 Utah 528

MADSEN v. UTAH LIGHT & RAILWAY COMPANY

No. 2038

Supreme Court of Utah

November 17, 1909

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by N. P. Madsen against the Utah Light & Railway Company.

Judgment for defendant. Plaintiff appealed.

AFFIRMED.

James D. Pardee for appellant.

APPELLANT'S POINTS.

The third error complained of relates to the question asked of Dr. Van Cott by the defendant, to-wit: Q. "At the time you had the conversation resulting in putting this--making this statement (defendant's exhibit 1) was Mr. Madsen conscious, rational or not? A. Yes sir." The objection to this was made by plaintiff on the ground that the matter was incompetent, irrelevant and immaterial. This raises the question of the competency of Dr. Van Cott to testify to any condition, mental or physical, knowledge of which he gained by treating the plaintiff as a physician. Under section 3414 subdivision 4, Laws of Utah 1907.

If our statute prevents a physician from testifying, it certainly prevents a physician from testifying to the mental condition of his patient as much as to any physical condition of his patient. The lower court was entirely erroneous when he permitted Dr. Van Cott to answer the question. (Flint's Est., 100 Cal. 391; In re Nelson's Estate, 132 Cal. 182; In re Redfield's Est., 116 Cal. 637; Gurley v. Park, 135 Ind. 440; Bracnney v Fogel, 156 Ind. 535; Towles v. McCurdy, 163 Ind. 12; In re Hunt's Will, 122 Wis. 460.) The law is that where the relation of the physician and patient exist it will be presumed that the information in question would not have been imparted to the physician, except for the purpose of aiding him to prescribe. The physician in such cases is the judge of the matter, and all communications made to him or questions asked by him are presumed to be given and saked for the purpose of enabling the physician to prescribe. (Gratan v. Met. Life Ins. Co., 80 N.Y. 281, 36 Am. Rep. 617; Fenney v. Long Island R. R. Co., 116 N.Y. 375, 5 L.R.A. 544; State v. Kennedy, 177 Mo. 98, 75 S.W. 979; Eddington v. Mutual Life Ins. Co., 67 N.Y. 185; Battis v. Chicago R. I. & P. R. Co., 124 Iowa 623.)

Besides the presumption held as to such matters, it has been specifically held that physicians are not allowed to testify to communications from a patient as showing what the cause of the injury was or as to the manner in which the accident occurred. (Raymond v. Burlington C. R. & N. Ry. Co., 65 Iowa 152; McRae v. Erickson, 1st Cal.App. 326; 82 P. 209; Norton v. City of Moberly, 18 Mo.App. 457; Streeter v. City of Breckenridge, 23 Mo.App. 244; Cling v. City of Kansas, 27 Mo.App. 231; N.Y. C. & S. L. R. Co. v. Mushrush, 11 Ind.App. 192; Penn. Co. v. Marion, 123 Ind. 415; U. P. R. R. Co. v. Thomas, 152 F. 365.)

P. L. Williams, George Smith, and John G. Willis for respondent.

RESPONDENT'S POINTS.

It affirmatively appears that Dr. Van Cott did not prescribe for or treat the plaintiff, and that he did not obtain any information from the plaintiff that was necessary for him to obtain in order to treat him, if he had done so or desired to, and under such a state of the evidence the information acquired from or the statements made by the patient are admissible. (In re Halsey's Estate, 9 N.Y.S. 441; Dittrich v. Detroit, 57 N.W. 25; Green v. M. S. Ry., 63 N.E. 958.)

If any presumption attends that the information acquired by a physician was within the statute in the absence of any showing, the condition of the evidence respecting this assignment was such as to positively rebut any such presumption and to show affirmatively that the communication was not within the privilege of the statute. (Sheron v. Sheron, 22 P. 26 [Points 24 to 26]; Taylor v. Taylor, 68 P. 482; Earl v. Grout, 46 Vt. 13; State v. Snowden, 23 Utah 318; Corney v. Tomahill, 37 Am. Dec. 287; Childs v. Merrill, 66 Vt. 302; Hughes v. Boon, 102 N.C. 137.)

It is well settled that in an action to recover damages for personal injuries where the plaintiff calls the physician as a witness, it is of itself an express waiver of the seal of secrecy imposed by the statute as to such witness. (Alberta v. N.Y. L. E. & W. R. R., 118 N.Y. 78; McKinney v. Grant Street, etc., R. R., 104 N.Y. 352; Holcomb v. Harris [N.Y.], 59 N.E. 820; Hoyt v. Hoyt [N.Y.], 20 N.E. 402; Thompson v. Ish, 17 Am. St. 552 note at page 570; Pringle v. Burrough, 75 N.Y.S. 1055.)

The plaintiff, by his own conduct, in proceeding to examine Dr. Calderwood in detail as to the nature and extent of the injury, broke the seal of secrecy, and put directly in issue the nature and extent and cause of the injury. It thereupon became a matter of open inquiry and competent for the defendant to rebut that character of evidence with reference to which Dr. Calderwood was examined in chief. (Treanor v. Manhattan R. Co., 16 N.Y.S. 536; Lane v. Boicourt [Ind.], 27 N.E. 1110; Highfill v. Mo. P. R. R. Co., 93 Mo.App. 219; McKinney v. Grant Street R. Co. [N.Y.], 10 N.E. 544.)

FRICK, J. McCARTY, J., concurring. STRAUP, C. J., dissenting.

OPINION

FRICK, J.

Appellant brought this action to recover damages for personal injuries. In his complaint he, in substance, alleged: That at a certain time and place he was a passenger on one of respondent's street cars; that he informed the conductor that he desired to alight at a certain street crossing; that when the car approached the crossing in question it slackened speed and was running slowly; that appellant then left the inside of the car and went onto the rear platform, and from there stepped onto the car step with a view of alighting therefrom; that the car did not stop at the crossing, but at about the time he reached the same it suddenly increased its speed, which caused the appellant to fall from the car step to the ground, by reason of which he was greatly injured. Respondent denied all acts of negligence and pleaded contributory negligence. A trial to a jury resulted in a verdict in favor of respondent. The court entered judgment upon the verdict, and the appellant presents the record on appeal.

The principal assignments of error, and on which appellant strenuously insists, relate to the admission of certain evidence over appellant's objections. The first error to be noticed arose as follows: After appellant had testified and given his version of the accident and detailed the cause and extent of his injuries, the defendant called Dr. Van Cott as a witness, who, in answer to respondent's counsel testified, in substance: That he was a physician and surgeon; that he had been engaged in practice for over five years; that at the time of the accident he was engaged in practice in Salt Lake City; that he was not a member of the medical staff of respondent, nor was he employed by it as an assistant; that at times, in cases of accident, when he was called on, however, he had done some emergency work for respondent when respondent's regular surgeons could not be obtained; that on the evening of April 13, 1907 (the date of the accident complained of), the witness was requested by Dr. Landenberger, one of respondent's regular surgeons, to go to the home of appellant. Questions were then asked and answered as follows: "Q. When you did things of that kind, state whether or not it was part of your duty, when making a call in an emergency case for the Utah Light & Railway Company, to obtain a record or statement. A. Yes, sir; it was. Q. Obtain a record or statement of the accident and how it occurred, and turn it into the company? A. Yes, sir. Appellant's Counsel: I object to that as being incompetent, irrelevant, and immaterial, and move to strike out his answer. The Court: The motion to strike out is denied. Appellant's Counsel: Exception." The doctor further testified that he had a conversation with appellant and obtained a statement from him on the evening of the accident; that he reduced the statement to writing, read it over to appellant; that appellant signed it; that that the statement was the one then exhibited to the witness, which will hereafter appear in full. Counsel for respondent then asked the witness: "I wish you would state whether or not, in that conversation with reference to how this accident occurred and the things that appear on that statement, you obtained any information from the plaintiff that was necessary for you to obtain in order to treat him if you had desired to do so?" Counsel for appellant interposed the following objection: "Objected to as incompetent and irrelevant, calling for a conclusion." The objection was overruled and exception noted. The witness answered: "No, sir." "Q. At the time you had the conversation resulting in putting this--making this statement, was Mr. Madsen (appellant) conscious and rational, or not? A. Yes, sir. Counsel for Appellant: I object to that as incompetent, irrelevant, and immaterial, and move to strike the answer out. The Court: Overruled. You may have the benefit of the objection as though made before the answer. Appellant's Counsel: Exception. Q. Have you any other source and cause of obtaining the information you put here except what he told you? A. No, sir. Q. Where and what was he doing when you went to the house? A. He was sitting in a chair, if I remember correctly. Q. Dressed or undressed? A. He was dressed. Q. Did you make any examination, or attempt to, of his physical condition? A. Yes. I asked him where he was injured, and I took hold of his knee and started to move it, and there was considerable pain there, and he could not move the limb very well without considerable pain." Then the doctor stated that he could not examine the patient satisfactorily and made arrangements with Dr. Landenberger over the 'phone to make a further examination the...