Missouri & North Arkansas Railroad Company v. Daniels

• Decision Date: 13 March 1911
• Citation: 136 S.W. 651,98 Ark. 352
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. DANIELS
• Court: Arkansas Supreme Court

136 S.W. 651

98 Ark. 352

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. DANIELS

Supreme Court of Arkansas

March 13, 1911

Appeal from Boone Circuit Court; Brice B. Hudgins, Judge; affirmed.

Judgment affirmed.

W. B Smith and J. Merrick Moore, for appellant.

1. Where the plaintiff testifies to ailments alleged to have resulted from an accident and attributes the same to such accident, and introduces the testimony of a physician who treated her after the accident, who likewise attributes her diseased condition to such accident, she, by introducing such testimony, waives the right to have considered as privileged communications to, and discoveries made by, physicians who treated her before the alleged accident for the same disease. N.Y. Code, §§ 834-836; Kirby's Dig. § 3098; 4 Wigmore on Ev. § 2380, pp. 3350, 3351; Id. p. 3352; Id. § 2390; 39 Mich. 606; 89 Mo.App. 604; 40 Hun (N.Y. ) 441, S. C. affirmed, 110 N.Y 643; 148 N.Y. 88; 104 N.Y. 352, 353; 10 N.Y.S. 159; 16 Id. 536; 106 N.Y. 306; 27 N.E. 1111.

2. Where the testimony of the complaining witness varies from that given on a former trial, and the memory of the stenographer who took notes of the testimony given at the former trial fails, the notes taken by him at such former trial may lawfully be admitted for the purpose of contradicting testimony of the complaining witness given at the second trial. Greenleaf on Ev. §§ 436, 437; Wigmore on Ev. § 735; 56 Vt. 426; 2 Id. §§ 1286, 1325, 1330; 35 S.C. 549; 50 P. 445; 74 N.W. 146; 78 N.W. 1046; 61 S.W. 719; 97 S.W. 496; 35 P. 621; 60 N.E. 685; 52 N.W. 247; 69 S.W. 487; 68 N.W. 428; 56 P 861; 96 Mich. 486; 92 N.W. 1014; 61 N.E. 716; 71 P. 249.

3. The court erred in suppressing the deposition of E. L. Routh. The provisions of sections 3178-3180, Kirby's Digest, apply to depositions taken upon order of court, i. e., upon a commission under order of the court. Sections 3166-3176, inclusive, prescribe the mode of taking depositions upon notice, etc.

4. The fourth instruction given is erroneous. The second instruction is also erroneous in that it is inconsistent with other instructions given, and because it implies a degree of care in assisting passengers from trains which the law does not require. It is abstract. 85 Ark. 117.

W. F. Pace and Troy Pace, for appellee.

1. Appellee's testimony was not a waiver of her right to object to the testimony of phyiscians who had treated her prior to the accident, and such testimony was properly excluded. 82 S.W. 95-6; 10 L. R. A. 36.

2. Where a stenographer does not remember the testimony of a witness given at a former trial, he will not be permitted at a second trial to read from his stenographic notes the testimony of such witness for the purpose of contradicting or impeaching the witness. Kirby's Dig. § 3138; 66 Ark. 546-550.

3. There was no error in suppressing the deposition of E. L. Routh. Section 3178, Kirby's Digest, provides the only method in which depositions may be taken upon interrogatories, except by agreement. Code, §§ 622, 629, 630, 631.

4. In propounding a hypothetical question, it is not necessary that the question embrace all the facts which the testimony tends to prove, but the questioner may select the undisputed facts, or such facts as he conceives to be established by the evidence, and predicate his question upon them. 77 Ark. 426; 87 Ark. 201.

5. The fourth instruction is correct. 91 Ark. 343. If there was any objection to the wording of the instruction, it was the duty of appellant to call attention thereto by a specific objection. 90 Ark. 108-112; 78 Ark. 22; 83 Ark. 61; 88 Ark. 204.

If there was any error in instruction 2, it was cured by instruction 12 given at appellant's request. 67 Ark. 531; Id. 1; 69 Ark. 558; 74 Ark. 431; Id. 377; 75 Ark. 260-261.

OPINION

FRAUENTHAL, J.

This was an action instituted by Mattie Daniels, plaintiff below, to recover damages for personal injuries which she alleged she sustained in alighting while a passenger from one of defendant's trains at the station of Batavia, Ark. She alleged that when she was descending the steps of the coach to the depot platform the conductor in charge of the train took hold of her arm and carelessly and negligently jerked her, causing her to fall to the depot platform; that in falling she struck her knee on the edge of the platform, and twisted her body to such an extent that it resulted in a prolapsus of the uterus. The defendant denied all allegations of negligence attributed to it or its employee, and denied that plaintiff had sustained any fall, alleging that the condition of her womb was due to a displacement which she had sustained long prior to the alleged injury.

There was a sharp conflict in the evidence on the question of whether the plaintiff fell as she descended from defendant's train at Batavia, and also as to the cause of the condition of her uterus. The testimony on the part of the plaintiff tended to prove that on February 27, 1909, she became a passenger on one of defendant's trains en route from Harrison to Batavia, arriving at the latter station the same evening after dark; that while she was descending the steps of the coach the conductor stepped up on the last step and grabbed her by the arm, jerking her down so as to cause her to fall and strike her left knee on the edge of the platform. Her knee was cut, and her leg bruised, and in falling her body was twisted so that it caused her severe pains in her back and resulted in a displacement of her womb. The testimony tended to prove that inflammation set in, developing into a growth of tumors, known as polypi, which necessitated an operation within a few months thereafter, and that on this account she had been an invalid from the date of her injury; and there was testimony tending to prove that such injury was permanent. Dr. Fowler, a physician, was introduced by plaintiff, and he testified that he had examined her subsequent to the date of the injury, and had attended her for several months thereafter, and that she was suffering from a prolapsus of the uterus, which might have resulted from her fall; and this witness detailed the nature and extent of her diseased condition, and the consequent growth of the polypi in the womb.

The plaintiff testified that prior to the injury she was strong and in good health, and had been engaged in various kinds of hard work, such as general house work and laboring in the field.

There were a number of witnesses who testified on behalf of the defendant that they were at the station and saw the plaintiff as she was descending from the train, and they testified that they did not see her receive any fall. Defendant also introduced testimony tending to prove facts and circumstances occurring immediately after the plaintiff had left the train indicating that she had received no injury from any alleged fall.

The jury returned a verdict in favor of the plaintiff, and we think that there was sufficient evidence to sustain its finding.

Defendant does not contend that there was not sufficient evidence to sustain the verdict of the jury, nor does it contend that the amount returned by them was excessive. It urges only that there were errors committed by the lower court in the rejection and admission of evidence, and in its rulings upon the instructions.

During the progress of the trial the defendant introduced two physicians who had attended on the plaintiff about two years prior to the time of the alleged injury, and offered to prove by them that she had sustained a displacement of the womb at that time, and had suffered from that trouble long prior to the date of the alleged injury. The plaintiff objected to the admission of this testimony, and her objection was sustained by the court.

It is conceded by the defendant that the information which the testimony of these witnesses would have disclosed was acquired by them while attending the plaintiff as physicians; but it contends that the evidence was admissible because the plaintiff had waived her right to object to the introduction of any testimony relative to her condition by reason of having herself introduced the testimony of Dr. Fowler, above referred to.

It is provided by section 3098, Kirby's Digest, that "no person authorized to practice physic or surgery, and no trained nurse, shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician or to act for him as a surgeon or trained nurse." This enactment was manifestly made for the benefit of the patient. Its evident purpose was to throw around him a protecting shield so that he might freely and fully disclose to his physician every fact relative to his ailment with the confident knowledge that the information thus obtained could not be divulged to his injury or disgrace. Being for his benefit, the provision was adopted out of reasons of public policy as a privilege accorded solely to the patient; and, like any other privilege, it is one that the patient may waive. By the terms of this statute, a physician is prohibited from disclosing information obtained while treating his patient; but it has been uniformly held by the courts of those jurisdictions having similar statutes that the provisions thereof must receive that construction which was intended by the Legislature which framed them, and that is, that the patient himself may waive the privilege of the statute in order to obtain the benefit of the physician's evidence. When this privilege is waived as to any particular witness, the opposing side is entitled to the benefit of the waiver as to such witness. But the benefit of such waiver in behalf of the adversary...