Metropolitan St. Ry. Co. v. Jacobi

• Decision Date: 06 December 1901
• Docket Number: 29.
• Citation: 112 F. 924
• Parties: METROPOLITAN ST. RY. CO. v. JACOBI.
• Court: U.S. Court of Appeals — Second Circuit

112 F. 924

METROPOLITAN ST. RY. CO. v. JACOBI.

No. 29.

United States Court of Appeals, Second Circuit.

December 6, 1901

Robert C. Beatty, for defendant in error.

Before WALLACE, Circuit Judge, and TOWNSEND, District Judge.

WALLACE Circuit Judge.

This is a writ of error by the defendant in the court below to review a judgment for the plaintiff rendered upon the verdict of a jury in an action brought to recover damages for personal injuries received by the negligence of the defendant.

The assignment of error which challenges the denial of the motion for a new trial made by the defendant upon the ground of the excessiveness of damages is not available, because it is not within the province of this court to review the decision of such a motion. Railroad Co. v. Winter's Adm'r, 143 U.S. 60, 12 Sup.Ct. 356, 36 L.Ed. 71.

The only other assignment of error which has been argued challenges the ruling of the trial judge in excluding the testimony of Dr. Hepburn, a witness produced by the defendant upon the trial,-- a physician who was employed professionally by the plaintiff shortly after the accident. The defendant sought to elicit from Dr. Hepburn information received by him while attending the plaintiff in a professional capacity in respect to the plaintiff's injuries. The court excluded the testimony.

It is conceded by the defendant that the testimony would have been incompetent, as contravening section 834 of the New York Code of Civil Procedure, if the plaintiff had not waived upon the trial the right to object to it; and the question is whether that right was waived by the plaintiff. Section 836 of the Code, in effect, provides that the information acquired by a physician while attending a patient may be disclosed only when the provisions of section 834 'are expressly waived upon the trial * * * by the patient. ' The waiver which is relied upon by the defendant consists in the fact that the plaintiff had examined upon the trial as witnesses in his behalf three physicians who had attended him professionally and who had given testimony in respect to the nature and extent of the injuries which were the subject of the action. If their testimony, or the testimony of any of them, had been in respect to information obtained at the same consultation or occasion at which Dr. Hepburn was present, the plaintiff would have waived the privilege to insist that the latter should remain silent, according to the construction given to the Code provisions by...