Powell v. J. J. Newman Lumber Co

• Decision Date: 13 January 1936
• Docket Number: 31891
• Citation: 165 So. 299,174 Miss. 685
• Court: Mississippi Supreme Court
• Parties: POWELL v. J. J. NEWMAN LUMBER Co

165 So. 299

174 Miss. 685

POWELL v. J. J. NEWMAN LUMBER Co

No. 31891

Supreme Court of Mississippi

January 13, 1936

Division B

1 RAILROADS.

In pedestrian's action for injuries allegedly sustained when he was struck by chain swinging from passing log car evidence held to sustain finding for company operating log car.

2. APPEAL AND ERROR. Trial.

In negligence action, instruction requiring plaintiff to prove case to "satisfaction of jury" held erroneous as equivalent to requiring proof beyond a reasonable doubt instead of by preponderance of evidence, but not to require reversal where substantial justice lay in jury's verdict.

3. APPEAL AND ERROR. Evidence.

Permitting physician in absence of jury, but over objection of plaintiff, to testify to his examination of plaintiff, and permitting framing of hypothetical question to be asked physician before jury as expert, embracing matters testified to by him, held error, but not reversible where verdict contained substantial justice (Code 1930, section 1536).

HON. W. J. PACK, Judge.

APPEAL from the circuit court of Forrest county HON. W. J. PACK, Judge.

Action by Lige Powell against the J. J. Newman Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Cephus Anderson and T. J. Wills, both of Hattiesburg, for appellant.

Section 1536, Code of 1930, is in this language: "All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."

In the case of Railroad v. Messina, 109 Miss. 143, 67 So. 963, this court held that the evidence of a physician as to knowledge gained by reason of his employment as such could not be disclosed without the consent of the patient; that the privilege was for the benefit of the patient, and not of the physician.

United States Fidelity & Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115; Newton Oil Mill v. Spencer, 116 Miss. 567, 77 So. 605; Hamel v. Ry. Co., 113 Miss. 344, 74 So. 276.

Whatever may have been the reason for the enactment of the statute, the statute expressly prohibits a physician from testifying without the consent of the patient. The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judgment and the public may hear the statement of the physician in such case, though it be excluded from the jury. In such case the question ought to be directed to ascertaining whether the physician has knowledge by reason of the relation of physician and patient, and, if it was so acquired, it ought to be excluded.

McCaw v. Turner, 126 Miss. 206, 88 So. 705; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Pa. R. R. Co. v. Durkee, 147 F. 99.

We submit that it is not anything like as prejudicial to the patient to have the jury draw no unfavorable inferences against the defendant because he did not call the plaintiff's physician, as it is to permit the defendant to call the plaintiff's physician and compel the plaintiff, in the presence of the jury, to claim the privilege afforded him by statute.

The statutes guaranteed to him the privilege and protection to permit the doctor to be called, and objection to be forced to be made in the presence of the jury, was highly prejudicial. The plaintiff's case, after that occurrence, would stand no show of fair and impartial consideration at the hands of the jury.

Gulf, Mobile & Northern R. R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551; Miss. Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483.

The nurses' knowledge of the plaintiff in this case was acquired while preparing the plaintiff for the examination by the physician. They were assisting the physician, to that extent, their testimony was incompetent.

Gulf, Mobile & Northern R. R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551.

The court in an instruction told the jury that the plaintiff must prove to your satisfaction, by a preponderance of the testimony that he was injured on the occasion referred to in his declaration. This instruction was erroneous.

In a civil case it is only required to prove by a preponderance of the evidence the fact in issue and certainly that preponderance of evidence is not required to be more or greater than necessary to reasonably satisfy the mind of the jury. The court cannot tell them that they must be satisfied.

Lamar Hennington and Heidelberg & Roberts, all of Hattiesburg, for appellee.

What was said by the court was said in the absence of the jury and could not have influenced the jury in its verdict. But in defense of the trial court we submit he was correct.

N. O. & N. E. R. R. Co. v. Scarlett, 115 Miss. 285, 76 So. 265; Railroad Co. v. Robinson, 106 Miss. 896, 64 So. 838.

The question of whether or not a doctor is barred from qualifying as an expert and answering hypothetical questions merely by reason of the fact that at some former time the party whose interest might be adversely affected thereby was a patient of the physician has been decided against the position of appellant.

Estes v. McGehee, 133 Miss. 174, 97 So. 530; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Watkins, 106 So. 753.

The case of Miss. Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, clearly recognizes the rule that the statute does not apply to a nurse, and the only information which she is barred from disclosing is where she is acting as an assistant of the physician and while so acting acquires knowledge by reason of the assistance then being rendered in the presence of the physician, or by reason of communications between the patient and the physician, and this applies only to information gained in this manner.

Nurses employed by hospitals are not within the rule which would make them incompetent witnesses.

Goodman v. Lang, 158. Miss. 204, 130 So. 50.

"Mere accident" causing injury is where no one is negligent and no one was to blame.

Ticknor v. Seattle-Renton Stage Line, 247 P. 1, 139 Wash. 354; Lighthall v. Wilson, 15 S.W.2d 690; Alabama Great Southern R. R. Co. v. Brown, 75 S.E. 330, 138 Ga. 328; Alabama & V. Ry. Co. v. Groome, 52 So. 703, 97 Miss. 201.

Appellant next complains of a series of instructions granted the appellee dealing with the burden of proof, particularly because they contained the expression "to the satisfaction of the jury." In practically every one of these instructions, the expression quoted is followed by the further expression "by a preponderance of the testimony." Counsel cite no authority whatsoever in support of their contention that these instructions were erroneous.

Cranston v. N. O. & N. E. R. R. Co., No. 30,332, decided by the court without opinion on January 23, 1933.

Shoemaker v. Indiana Ry., 133 N.E. 591.

Even if there was any technical error in these instructions, which is denied, still, the universal rule is that all of the instructions in the case must be construed together as one and interpreted as a whole, and if when so viewed they embody the applicable law there is no error though one taken alone is incomplete.

Friedman v. Allen, 152 Miss. 377, 118 So. 828; Landrum v. Ellington, 152 Miss. 569, 122 So. 444; Carlisle v. City of Laurel, 156 Miss. 410, 124 So. 786; Hammond v. Morris, 156 Miss. 802, 126 So. 906.

Even if there is a defect in an instruction, yet if when all are read together the law is fairly presented there will be no reversal because of such defect.

Bass v. Burnett, 151 Miss. 852, 119 So. 827; Durrett v. Mississippian Ry. Co., 158 So. 776.

We do not concede for one minute that there was any error committed by the lower court in favor of the appellee in this case. But even if there had been, this court could not, we submit, reverse the judgment of the lower court. On the facts developed and demonstrations had before the jury on the trial of this case, the court could have with propriety directed a verdict in favor of the defendant. The testimony of the plaintiff was not only contrary to the overwhelming weight of the testimony, but his testimony was inconsistent with the physical facts and with natural laws and common knowledge.

Miss. Central R. R. Co. v. Smith, 154 So. 533; National Box Co. v. Bradley, 157 So. 92.

Argued orally by Cephus Anderson, for appellee.

OPINION

Ethridge, P. J.

The plaintiff, Lige Powell, appellant here, brought suit against the J. J. Newman Lumber Company, appellee here, for an alleged personal injury. The declaration states that the J. J. Newman Lumber Company operates log cars upon which they carry logs from Perry and Greene counties into the mill plant in the city of Hattiesburg; that these log cars were constructed of timber; and that the logs were carried parallel to the cars and fastened thereto by means of toggle chains, and that when the cars were emptied, the chains were placed on the cars in such manner as to be unsafe, not being properly fastened, and being permitted to drag. That the appellant was traveling on Highway 49 east upon a private truck which developed engine trouble, and he started to walk back to Hattiesburg and came to the point where the highway crossed the tracks of the railroad company; that a log car was approaching, and appellant stopped to await its passing; and that one of the toggle chains swung in such a manner as to strike the appellant around the body and then struck a telephone post. The declaration further states that the appellant suffered severely from such injury, and that his eyes were injured by dirt, etc., and that when some one picked him up and carried him to...