McPherson v. Harvey

• Decision Date: 07 February 1916
• Docket Number: No. 11859.,11859.
• Citation: 183 S.W. 653
• Parties: McPHERSON v. HARVEY et al.
• Court: Missouri Court of Appeals

183 S.W. 653

McPHERSON v. HARVEY et al.

No. 11859.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Rehearing Denied March 13, 1916.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by Gertrude McPherson against Ford F. Harvey and others. Judgment for plaintiff, motion for new trial granted, and plaintiff appeals. Affirmed.

Hardin & Garrard, of Kansas City, for appellant. John H. Lucas, Mont T. Prewitt, and Chas. A. Stratton, all of Kansas City, for respondents.

JOHNSON, J.

Plaintiff recovered judgment for $6,000, in the circuit court of Jackson county in a suit for personal injuries she alleges were caused by the negligent operation of a street car from which she was alighting at a regular stopping place. She alleged, and her evidence tended to prove, that a severe bruise she received on the body from striking the pavement resulted in the formation of abdominal abscesses in the region of the uterus which involved that organ, the Fallopian tubes, and the intestines. Two major surgical operations which threatened her with death were required to relieve her condition. From all the expert evidence it appears that such abscesses or collections of pus are due to the multiplication and ravages of certain varieties of germs, and that a severe contusion or bruising of internal tissues often affords a favorable seat for their lodgment and culture. Abscesses frequently result from other causes, but the evidence adduced at the trial suggested no other cause than the bruise which plaintiff's experts testified could have been the sole cause. On the witness stand plaintiff asserted repeatedly and most positively that she had been perfectly healthy and normal before her injury and had not consulted a physician during the preceding 15 years. This testimony went to the jury undisputed. In their motion for a new trial filed February 1, 1915 (the verdict was returned January 28th), defendants included the ground of newly discovered evidence which consisted principally of the statement of a physician supported by his affidavit, attached to and filed with the motion, to the effect that in 1912 and 1913 (the injury occurred in November, 1913) he had treated plaintiff for a disease which he diagnosed as a chronic infection of the uterus, Fallopian tubes, and ovaries, and had advised her that a serious surgical operation would be necessary to give her substantial relief. The treatment began July 5, 1911, and continued to March 16, 1913. Counter affidavits were filed by plaintiff. The court sustained the motion for a new trial on the ground, stated in the order, of "newly discovered evidence," and plaintiff appealed.

The most important question for solution in the consideration of the ruling of the court is whether or not the newly discovered evidence, which consists of the knowledge a physician of plaintiff acquired of her state of health during the existence of the confidential relationship between them of physician and patient, is privileged and may not be used against plaintiff without her consent. There can be no doubt that it was privileged at the beginning of the trial, and, if plaintiff had done nothing to waive such privilege, defendants would not have had the right to offer the witness...