Oliver v. Aylor

• Decision Date: 07 July 1913
• Citation: 158 S.W. 733
• Parties: OLIVER v. AYLOR.
• Court: Missouri Court of Appeals

158 S.W. 733

OLIVER v. AYLOR.

Springfield Court of Appeals. Missouri.

July 7, 1913.

WITNESSES (§ 219)—PRIVILEGED COMMUNICATIONS—TESTIMONY BY PHYSICIAN—WAIVER OF PRIVILEGE.

The right given to a patient by Rev. St. 1909, § 6362, to object to testimony by his physician as to information acquired in his professional character was waived by plaintiff's testimony, in a personal injury action, that Dr. C., in whose office he was when he became conscious after the injury, took out a bone and lanced his hand, which was festering, and by introducing evidence by another physician that his hand was swollen and infected at the time, so as to permit Dr. C. to contradict such evidence.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Edward Oliver against Ben Aylor. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

The respondent, Edward Oliver, recovered of defendant in the circuit court of Jasper county a judgment for $1,000 as his damages for personal injuries sustained while working as a shoveler in defendant's mine. He was injured by rocks and dirt falling from the roof, which struck him on the head and body, rendering him unconscious, and resulting in a scalp wound and an injury to one of his hands between the wrist and the second joint of the thumb. He was taken by defendant's ground boss to the office of Dr. L. C. Chenoweth, in Webb City, who dressed the wounds, and plaintiff was treated by this doctor for a period of about three weeks. On suggestion of a friend he changed physicians and consulted Dr. S. E. Miller, of Joplin.

Plaintiff's testimony as a witness in his own behalf, so far as material to a decision on this appeal, is substantially as follows: "When I came to myself (referring to the time just after the injury), I was sitting up before Dr. Chenoweth in Webb City. He had dressed my head, I presume, and had started in on my hand. He treated me from the 29th of June until the morning of the 18th of July, and during his treatment my hand got worse all the time. My hand kept swelling, and I couldn't sleep from pain. I thought some bones were broken in it, and Dr. Chenoweth took one out. It was festering, and on the 4th of July Dr. Chenoweth lanced it. When I went to Dr. Miller, he said there was danger, and that it ought to be operated on. Dr. Miller put me under the influence of ether and took out the bad flesh. My hand looked black up to the wrist. After Dr. Miller's operation my hand got better, and has continued to get in better shape." Plaintiff also testified that from the blow on the head he at times has dizzy spells and becomes unconscious.

Doctor Miller testified for the plaintiff that when the injured man came to his office on the 19th of July he had an injured hand, very much swollen and infected, the end of the metacarpal bone being infected and discharging considerable pus; that there was an opening on the inside of the hand, and that pus was discharging from both sides; that he was told by plaintiff that there were little pieces of bone coming out of the openings several days prior to July 19th; that he opened the hand and found the end of the bone ragged, having the appearance of being broken and crushed; that he cut it square, so as to give it a smooth surface, with proper drainage; that he treated plaintiff with antiseptics, there being a good deal of inflammation, and made an opening on the inside of the hand so as to give proper drainage, and that the swelling extended on the top of the forearm. He stated that he did not treat the injury on the head as that had healed. He testified that the bone was jagged and crushed, and that pieces were working out through the opening of the wound; that when plaintiff came to his office, he was considerably run down, had thin blood, was pale, had considerable fever, and that he was septic—explaining that "sepsis" means a general poisoning of the system, very often occasioned by an external injury—that he treated plaintiff hypodermatically and internally for such condition, and that it was the injury to the hand that caused this condition.

Defendant called as a witness in his behalf Dr. L. C. Chenoweth who was allowed to testify that plaintiff was brought to his office by an employé of the defendant, and that plaintiff had an injury to his hand and a scalp wound, that he dressed the scalp wound properly, and that the thumb had sustained what he called a lacerated or contused wound; that is, a crushing injury. At this point of his testimony the attorneys for the plaintiff, being permitted to ask a preliminary question, inquired if what he learned with reference to plaintiff's condition was learned while acting in the capacity of a physician and surgeon. On receiving an affirmative answer, objection was made to his testifying as a witness in the case, which objection was sustained, and defendant saved an exception. The witness was permitted to testify that he was paid for his services by the defendant.

Defendant then offered to show by Dr. Chenoweth that he was employed by the defendant through John Westcott, defendant's superintendent, to treat the plaintiff for his injury sued for in this case; that he proceeded to treat the plaintiff, and that the injury to his head was simply a scalp wound; that the injury to his hand was an injury only to the thumb; that there was a small piece of bone that he took out; that he had drained the wound on both sides of the thumb, and that at about the end of three weeks the plaintiff left his office and never returned for further treatment; that at the time plaintiff left the office on his last visit his hand and thumb were healing nicely and were in good condition; that there were no signs of blood poisoning or septic conditions to the other part of the hand; that during the time plaintiff was being treated for the injury, he treated him and gave him some medicine for a fever that came on; that plaintiff had no fever at the time of his last visit.

The plaintiff then made the formal objection, stating as the ground of objection that the witness was the plaintiff's physician at the time, and that this information was received by him as such. The trial court sustained the objection, over defendant's exception.

The sole question for decision is, Did the court commit reversible error in refusing to permit Dr. Chenoweth to so testify?

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