Marshall v. Papineau, C-298

• Decision Date: 19 September 1961
• Docket Number: No. C-298,C-298
• Parties: William MARSHALL, Appellant, v. Virginia PAPINEAU and Ivan J. Papineau, Appellees.
• Court: Florida District Court of Appeals

Page 786

132 So.2d 786

William MARSHALL, Appellant, v. Virginia PAPINEAU and Ivan J. Papineau, Appellees.

No. C-298.

District Court of Appeal of Florida, First District.

Sept. 19, 1961.

Alfred A. Green, and Alfred A. Green, Jr., Daytona Beach, for appellant.

Wesley A. Fink, Daytona Beach, for appellees.

CARROLL, DONALD K., Chief Judge.

The defendant in an automobile collision case has appealed from a final judgment entered against him by the Circuit Court for Volusia County based upon a jury verdict.

The principal contention made by the appellant on this appeal is that the trial court committed reversible error in overruling his objections to the testimony given at the trial of the cause by Dr. Charles J. Wolfe, who testified for the plaintiffs concerning the injuries suffered by the plaintiff wife, the appellant contending that the testimony was inadmissible because Dr. Wolfe was an 'examining,' instead of a 'treating,' physician under the rule next discussed.

In support of this contention the appellant in his brief has cited and quoted from decisions from Iowa, Minnesota, and Texas, recognizing the rule that the opinion of a physician or surgeon as to the condition of an injured plaintiff, based wholly or in part on the history of the case as told to him by the latter on a personal examination, is inadmissible when the examination was made for the purpose of qualifying the physician or surgeon to testify as a medical witness. These cases are Devore v. Schaffter, 1954, 245 Iowa 1017, 65 N.W.2d 553, 51 A.L.R.2d 1041, Preveden v. Metropolitan Life Ins. Co., 1937, 200 Minn. 523, 274 N.W. 685, and Texas Employers' Ins. Ass'n v. Wallace, Tex.Civ.App.1934, 70 S.W.2d 832. The reason underlying this rule was thus expressed by the Supreme Court of Minnesota in Preveden v. Metropolitan Life Ins. Co., supra [200 Minn. 523, 274 N.W. 686]:

'The danger of admitting such testimony is apparent. When a doctor is consulted for the purpose of treatment, it may safely be assumed that the patient will tell the truth to the doctor since he is interested primarily in being cured. However, when he goes to a doctor for the purpose of qualifying the latter to testify, the natural tendency and inducement would be to the contrary.'

We recognize this exclusionary rule as sound when applied to the testimony of a physician or surgeon who can properly be categorized as an 'examining physician' rather than a 'treating physician.' We think, however, that in the present case Dr. Wolfe was shown to be a treating physician, and hence the rule cannot correctly be invoked to exclude his testimony.

The evidence at the trial showed that on March 28, 1959, the plaintiff wife was given first aid by Dr. Wolfe, a local general practitioner, a few minutes after the collision occurred. She was then taken to a local hospital, where she was apparently the patient of Dr. Wolfe until her release on April 12, 1959. Upon her release she returned to her home in a suburb of Cleveland, Ohio, where she remained until late in October, 1960, when she left for Volusia County, Florida, for the trial of this cause set for November 14 and 15, 1960. Upon her return to the said county she was reexamined by Dr. Wolfe on October 31, 1960. On cross-examination at the trial he admitted that the medical opinion he had given was based at least in part on the statements made to him on...