Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. O'Conner

• Decision Date: 30 October 1908
• Docket Number: 20,975
• Citation: 85 N.E. 969,171 Ind. 686
• Court: Indiana Supreme Court
• Parties: Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. O'Conner

85 N.E. 969

171 Ind. 686

Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. O'Conner

No. 20,975

Supreme Court of Indiana

October 30, 1908

Rehearing Denied February 23, 1909.

From Johnson Circuit Court; William E. Deupree, Judge.

Action by James O'Connor against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 7,000, defendant appeals.

Reversed.

Samuel O. Pickens and Owen Pickens, for appellant.

George W. Galvin, for appellee.

OPINION

Monks, J.

This action was brought by appellee to recover damages for personal injuries caused by being struck by appellant's passenger-train running on the track of the Union Railway Company between Washington and Liberty streets in the city of Indianapolis.

The complaint was in three paragraphs, the first and second paragraphs allege that appellee was injured by the negligence of appellant in running said train, the third paragraph charged a wilful injury of appellee. The cause was commenced in the Superior Court of Marion County, and twice tried in that court, the first trial resulting in a disagreement of the jury.

At the close of the evidence on the second trial of said cause, appellee withdrew from the jury the first and third paragraphs of the complaint, thereby dismissing the same. The jury returned a verdict in favor of appellee, which was set aside and a new trial granted by the court on motion of appellant.

The venue of the cause was afterward changed, on motion of appellee, to the court below, where the trial resulted in a verdict, and, over a motion for a new trial, judgment in favor of appellee.

The only error assigned calls in question the action of the court in overruling appellant's motion for a new trial.

It appears from the record that appellee was taken from the place where he was injured to St. Vincent's Hospital in Indianapolis, where Dr. John H. Oliver, surgeon of appellant, attended him.

On the first trial of the cause in the Superior Court of Marion County, Doctor Oliver was called and examined as a witness by appellee, and "testified relative to what he learned at the time he was called to see appellee at the hospital," and concerning "the intoxication of appellee at that time."

On the trial in the court below appellant called and examined said Doctor Oliver as a witness. During said examination appellant offered to prove by said witness, in response to a question propounded to him, "that he was called to see appellee at St. Vincent's Hospital shortly after his injury, and that appellee was at that time in a profound state of intoxication." Counsel for the appellee objected to the introduction of said evidence on the ground that the doctor was at the hospital for the purpose of acting in his professional capacity for appellee, and "therefore, upon our objection, it is a question of privilege with us whether we permit him to testify or not." This objection was sustained by the court, and the evidence excluded, to which ruling appellant excepted. This ruling of the court was assigned as a cause for a new trial.

Section 520 Burns 1908, § 497 R. S. 1881, provides: "The following persons shall not be competent witnesses: * * * Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases." It has been held by this court that the statute "confers a privilege which the patient, for whose benefit the provision is made, may claim or waive. It gives no right to the physician to refuse to testify, and creates no absolute incompetency." Penn Mut. Life Ins. Co. v. Wiler (1885), 100 Ind. 92, 99-100, 50 Am. Rep. 769, and cases cited. See, also, Towles v. McCurdy (1904), 163 Ind. 12, 14, 15, 71 N.E. 129; Morris v. Morris (1889), 119 Ind. 341, 343, 344, 21 N.E. 918. It is said in Williams v. Johnson (1887), 112 Ind. 273, 275, 13 N.E. 872: "A physician is not permitted to disclose the result of observations or examinations made by him upon the person of his patient, unless with the consent of the latter, or unless the patient in some way waives his privilege."

This privilege may be waived by the patient or his legal representatives, by examining the physician as a witness concerning said privileged communication. Morris v. Morris, supra: Morris v. New York, etc., R. Co. (1895), 148 N.Y. 88, 42 N.E. 410, 51 Am. St. 675; In re Will of Coleman (1888), 111 N.Y. 220, 19 N.E. 71; Rosseau v. Bleau (1892), 131 N.Y. 177, 30 N.E. 52, 27 Am. St. 578; Thompson v Ish (1889), 99 Mo. 160, 12 S.W. 510, 17 Am. St. 552, 570, note; Wheelock v. Godfrey (1893), 100 Cal. 578, 35 P. 317; Sovereign Camp, etc., v. Grandon (1902), 64 Neb. 39, 89 N.W. 448; Ellis v. Baird (1903), 31 Ind.App. 295, 297-298, 67 N.E. 960; 10 Ency. Ev., 138-142, 144, 145, 147; 4 Wigmore, Evidence, §§ 2390, 2391.

When the privilege has once been waived by the patient in this manner, it cannot be recalled, and the information is no longer privileged. McKinney v. Grand St. etc., Railroad (1887), 104 N.Y. 352, 10 N.E. 544; Clifford v. Denver, etc., R. Co. (1907), 188 N.Y. 349, 80 N.E. 1094; Morris v. New York, etc., R. Co., supra; Schlotterer v. Brooklyn, etc., Ferry Co. (1903), 89 (Hun) A.D. 508, 85 N.Y.S. 847; Elliott v. City of Kansas City (1906), 198 Mo. 593, 96 S.W. 1023, 6 L.R.A. (N.S.) 1082, 8 Am. and Eng. Ann. Cases 653; Green v. Crapo (1902), 181 Mass. 55, 62 N.E. 956; Pence v. Waugh (1893), 135 Ind. 143, 153, 154, 34 N.E. 860; Lissak v. Crocker Estate Co. (1897), 119 Cal. 442, 51 P. 688; 4 Wigmore, Evidence, § 2389, p. 3360, §§ 2390, 2391.

In McKinney v. Grand St., etc., Railroad, supra, the plaintiff sued the railway company to recover damages for personal injuries, and upon the first trial of the action she called the attending physician, who testified concerning her physical condition learned by him while attending her, but upon the second trial, when the same witness was called by the railway company to testify to the same facts, his evidence, on objection of the plaintiff, was excluded. On appeal to the court of appeals, that court held that the evidence should have been received, and that its exclusion was a reversible error. The court in discussing the question said on page 354: "Such evidence is made incompetent at the option of the patient only, and in case she elects at any time to remove the seal from the lips of the witness, the evidence may properly be received. The intent of the statute, in making such information privileged, is to inspire confidence between patient and physician, to enable the latter to prescribe for and advise the former most advantageously, and remove from the patient's mind any fear that she may be exposed to civil or criminal prosecution, or shame and disgrace, by reason of any disclosures thus made. Therefore, the statute provides that the information acquired by a physician while attending a patient, in his professional capacity, shall not be disclosed unless the patient waives its prohibition. (Code Civ. Pro. [N. Y.], §§ 834, 836.) It is claimed by appellant that the ban of secrecy having once been removed by the patient, and the information having lawfully been made public, the right to object further thereto has not been conferred. There seems much reason in this claim. The patient cannot use this privilege both as a sword and a shield, to waive when it enures to her advantage, and wield when it does not. After its publication no further injury can be inflicted upon the rights and interests which the statute was intended to protect, and there is no further reason for its enforcement. The nature of the information is of such a character that when it is once divulged in legal proceedings it cannot be again hidden or concealed. It is then open to the consideration of the entire public, and the privilege of forbidding its repetition is not conferred by the statute. The consent having been once given and acted upon cannot be recalled, and the patient can never be restored to the condition which the statute, from motives of public policy, has sought to protect. The stringency with which the rule excluding privileged communications is applied by this court is illustrated in the recent case of Renihan v. Dennin [1886], 103 N.Y. 573, 9 N.E. 320, 57 Am. Rep. 770, but there is no principle or authority for holding, after a consent to publish such information has been properly given, and the evil, if any, consummated, that the privileged person can again raise the objection. The object of the statute having been voluntarily defeated by the party for whose benefit it was enacted, there can be no reason for its continued enforcement in such case."

In Clifford v. Denver, etc., R. Co., supra, Morris v. New York, etc., R. Co., supra, Green v. Crapo, supra, and Elliott v. City of Kansas City, supra, the case of McKinney v. Grand Street, etc., Railroad, supra, is cited with approval.

In Morris v. New York, etc., R. Co., supra, it was held that a plaintiff could not sever her privilege, waiving it in part and retaining it in part; that when she waived the privilege it ceased to exist. Having once consented to and acquiesced in the uncovering and making public what before was private and confidential, said confidence is renounced entirely, and the waiver cannot be recalled. The information is open to the public, and the patient is no longer privileged to forbid its repetition. After the information has been made public by waiver of the patient, no further injury can be inflicted upon such rights and interests of the patient as the statute was intended to protect by the repetition of the information.

Clifford v. Denver, etc., R. Co., supra, was an action against the railroad company for personal...