Munz v. Salt Lake City R. Co.

• Decision Date: 13 December 1902
• Docket Number: 1385
• Citation: 70 P. 852,25 Utah 220
• Court: Utah Supreme Court
• Parties: ANNA MUNZ, Respondent, v. SALT LAKE CITY RAILROAD COMPANY, a Corporation, Appellant

70 P. 852

25 Utah 220

ANNA MUNZ, Respondent, v. SALT LAKE CITY RAILROAD COMPANY, a Corporation, Appellant

No. 1385

Supreme Court of Utah

December 13, 1902

Appeal from the Third District Court, Salt Lake County.--Hon Charles W. Morse, Judge.

Action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Bennett, Sutherland, Van Cott & Allison for appellant.

The statute (R. S., sec. 3414) has a tendency to prevent the full disclosure of the truth and should be strictly construed. Appeal of Turner, 44 A. 310; Satterlee v. Bliss, 36 Cal. 490, 507-8; Foster v. Hill, 12 Pick. 97; Gower v. Emery, 18 Me. 82.

Where the physician is the common agent of both parties, or examines the patient at the instance of the adverse party, as in the case at bar, the communications of the patient to the physician are not privileged. 3 Jones Ev., sec. 777; 1 Greenl. Ev. (16 Ed.), 247a; Nesbitt v. People, 19 Colo. 441, 461; People v. Hoch, 150 N.Y. 291, 302-3; People v. Sliney, 137 N.Y. 570, 580; People v Schuyler, 106 N.Y. 298.

The proposed evidence of Dr. Wilcox was admissible and the court erred in excluding it. He was not plaintiff's physician in the sense contemplated by the statute. He examined her in the interest of the defendant, and, presumably was paid for his services by the defendant. She knew that she could not enjoin secrecy on his part even if she desired to. She reposed no confidence in him, and therefore there could be no abuse of confidence on his part. She voluntarily submitted herself to an examination made by the agent of her adversary, and made certain statements to him, and it is unreasonable to hold that secrecy was enjoined upon him, when it was his duty to his principal to divulge such information. Not only was it his duty to do so, but the presumption is that he performed that duty.

E. A. Walton, Esq., and Messrs: Powers, Straup & Lippman for respondent.

While we are evidently within the statute, strictly construed, yet we suggest that this section is to be construed liberally with a view of affecting the object of the statute in accordance with our own rule of construction of statutes in derogation of the common law announced in and by section 2489 of the Revised Statutes, and the following cases hold that the statute should be liberally construed: Edington v. Ins. Co., 67 N.Y. 185-194; Renihan v. Dennin, 103 N.Y. 577.

The following cases hold that the fact that someone other than the patient employs the physician does not remove or lessen the privilege: N.Y. C. & St. L. Ry. Co. v. Mushrush, 11 Ind.App. 192; Weits v. Mound City Ry. Co., 53 Mo.App. 39; Keist v. Ry. (Iowa), 81 N.W. 181; Colo. F. & I. Co. v. Cummings, 46 P. 875; Griffiths v. Met. St. Ry. Co., 71 N.Y.S. 406; Raymond v. Railway, 65 Iowa 152.

BARTCH, J. BASKIN, J., concurs. ROLAPP, District Judge, concurring in the result.

OPINION

BARTCH, J.

--This suit was brought to recover damages for personal injuries claimed to have been sustained by the plaintiff through the negligence of the defendant. It was, among other things, alleged in the complaint that, while the plaintiff was a passenger on one of the defendant's street cars, the car was prematurely, violently, and negligently started, and that, as a result thereof, the plaintiff was violently thrown against the door and seat of the car, and permanently injured. In the answer these allegations were denied. At the trial a verdict was returned in favor of the plaintiff for $ 750, and judgment entered accordingly. This appeal is from the judgment. The decisive question relates to the refusal of the court, upon objection, to permit certain physicians, who had made an examination of the injured after the accident, to testify to what such examination revealed. Relating to this, the plaintiff testified: "Dr. Wilcox called on me and made an examination. I was in bed when he came. I went to see Superintendent Read about my injury. He sent me Dr. Wilcox. We had no money to pay a doctor. I sent for Dr. Anderson, and he did not come." Dr. Wilcox, sworn as a witness for the defendant, stated that he "examined the patient at her home by request of an official of the street railroad company;" that he was at liberty to prescribe treatment; that, if he had found a condition that needed treatment, he would have prescribed; that he did prescribe and treat such cases where they required it; and that one of the conditions in view when the examination was made was to prescribe, if necessary. Upon further examination of the witness Dr. Wilcox, questions were propounded to him by the defense, as follows: "Q. I wish you would tell the jury what you saw, and what was said and done? You may state the result of your examination." These questions were objected to as incompetent and inadmissible under the statute, and the objections sustained.

The appellant insists that the information acquired by the physician, under the circumstances, was not privileged, and that the action of the court in the premises was erroneous. Doubtless, this contention would be sound at common law, for it extended no protection to a physician, acting in his professional capacity, in regard to information acquired confidentially. Greenl. Ev. (15 Ed.), secs. 247, 248; Underh. Cr. Ev., sec. 179. In this State, however, the common law in this regard has been superseded by statutory enactment creating the privilege, and closing the mouth of the physician, under certain conditions, as to such information unless, by consent of the patient, he be permitted to speak. The enactment referred to in section 3414, Revised Statutes, so far as material here, provides: "There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: . . . 4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient." The...