Mulvena v. Alexander, 40.

• Decision Date: 09 December 1936
• Docket Number: No. 40.,40.
• Citation: 270 N.W. 291,278 Mich. 265
• Parties: MULVENA v. ALEXANDER.
• Court: Michigan Supreme Court

278 Mich. 265

270 N.W. 291

MULVENA

v.ALEXANDER.

No. 40.

Supreme Court of Michigan.

Dec. 9, 1936.

Suit by Margaret Mulvena against Glenn J. Alexander. From a judgment for plaintiff, after denial of plaintiff's motion for a new trial, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Argued before the Entire Bench, except POTTER, J.

Stuart W. Hill, of Detroit, for appellant.

George E. Day and Leo H. Robb, both of Detroit (Maurice Miller, of Detroit, of counsel), for appellee.

WIEST, Justice.

November 20, 1933, defendant's automobile bumped the rear of plaintiff's car which she was driving. She was a school teacher and on her way to school, accompanied by a friend. The collision did not overturn her automobile, but drove it slightly ahead and caused injuries to the car amounting to only $27.23. She brought this suit to recover damages for personal injuries and cost of repairs to her car. She had verdict for $27.33, the damage to the car, and asked for and was refused a new trial.

Upon review she contends that the verdict was contrary to the great weight of the evidence, the damages awarded grossly inadequate, and that erroneous rulings were made at the trial. She declared that ‘as a proximate result of said collision, plaintiff suffered personal and bodily injuries,’ set forth in detail, inclusive of shock to her nervous system, and that prior to the accident she ‘was in good physical and mental condition, and enjoyed good health.’ The damage to her car was claimed by the bill of particulars to the amount of $27.98. The answer of defendant left plaintiff to her proofs.

At the trial the issue arose whether the alleged injuries were ailments of long standing rather than occasioned by the collision. Plaintiff was questioned about her previous physical, mental, and nervous ailments, and defendant took issue with her claim of freedom from like anterior suffering. Upon such issue the court permitted introduction of probate records showing an application, in November, 1929, by plaintiff's mother (later, however, withdrawn) to have her admitted to an asylum as an insane person, appointment by the court of two physicians to examine her alleged condition and then report to the court.

The physicians examined her, were called as witnesses, verified the contents of their reports and were cross-examined. Counsel for plaintiff objected to the testimony on the ground that the matters were privileged and contends that admission of such evidence was in violation of the privilege between patient and physician and contrary to the statute. Comp.Laws 1929, § 14216. One of the physicians testified from personal observation of plaintiff that he classified her as a ‘maniac depressive type of psychosis.’ The certificates were of record in the probate court, were public in nature, the physicians acted under court order as provided by statute, Comp.Laws 1929, § 6887, and the physician-patient privilege did not obtain. See Perry v. Hannagan, 257 Mich. 120, 241 N.W. 232, 79 A.L.R. 1127. But, beyond this, plaintiff had called physicians to testify to her condition at the time of the trial and also prior to the accident, and, under such circumstances, even if the privilege did once exist, it was thereby waived. La Count v. Von Platen-Fox Co., 243 Mich. 250, 220 N.W. 697.

For a short period in the fall of 1929 plaintiff was in a sanatorium for hospitalization and gave testimony relative to her conduct therein, and, over objection, defendant was permitted to show conduct bearing upon her mental and nervous condition at that time. The subject-matter, under the issue presented by plaintiff's claim of no physical, mental, or nervous trouble before the accident, was pertinent and not mere impeachment upon a collateral matter, and for the same reason there was no error in permitting a witness of plaintiff's behavior in the sanatorium to be asked and to give the facts relative thereto and the reason for remembrance thereof.

Plaintiff denied taking narcotics before the accident, and defendant was permitted to show by a druggist that he had filled prescriptions in her behalf for narcotics. The reason assigned by counsel that such evidence impeached plaintiff's denial was bad, but, under plaintiff's claim of previous good health, we cannot consider the admission of...