Reid v. Yellow Cab Co.
Citation | 131 Or. 27,279 P. 635 |
Parties | REID v. YELLOW CAB CO. [*] |
Decision Date | 23 July 1929 |
Court | Supreme Court of Oregon |
Department 1.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Lucille Reid against the Yellow Cab Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Plaintiff recovered judgment against defendant for injuries she received while riding as a passenger in one of defendant's cabs. The injury was afflicted on plaintiff as a result of a collision between the cab and a street car. A trial was had to a jury, resulting in a verdict in plaintiff's favor in the sum of $3,500. Defendant appeals from the consequent judgment. Defendant assigns three errors only two of which require consideration. One error is based upon the admission of testimony of a physician called as a witness by plaintiff. He was allowed to testify over the objection of defendant as follows:
Here defendant interposed an objection to any statements made by plaintiff to the doctor. Attorney for plaintiff insisted that the physician should be permitted to give a history of the case. The court permitted the doctor to continue.
The objection made to the testimony was stated as follows:
"We do object to any testimony from this witness as to any conversations had with the plaintiff, being self-serving, and statements made by the plaintiff to the doctor, not in the presence nor subject to examination by the defendant, and that it would be purely hearsay, and we would like to have our objection go to all of the testimony."
Defendant did not object to the doctor testifying to the results of his own examination and to his referring to his notes to refresh his memory. The other alleged error is the court's refusal to give a requested instruction concerning the degree of proof necessary to establish a permanent injury.
Barnett H. Goldstein, of Portland (Thomas Mannix, of Portland, on the brief), for appellant.
Frank J. Lonergan, of Portland (Lou Wagner, of Portland, on the brief), for respondent.
COSHOW, C.J. (after stating the facts as above).
It was error for the court to admit the testimony regarding past events of the witness Dr. Alan W. Smith, consulted by plaintiff for the express purpose of qualifying himself to testify. Dr. Smith never treated plaintiff. There were two trials in the case, and just before the first trial he was consulted by plaintiff at the request of her attorneys for the express purpose of qualifying him to testify. At the second trial he was again consulted for the same purpose. I think that his testimony wherein he was permitted to relate what the witness told him about how the accident occurred, about her past suffering and nervousness, was clearly incompetent. The majority of jurisdictions exclude what the plaintiff tells a physician under such circumstances as to the plaintiff's present condition where the doctor is not called by the plaintiff to be treated. The better rule is stated in 22 C.J. pp. 268 and 269:
" Note to Shaughnessy v. Holt (236 Ill. 485, 86 N.E. 256) 21 L. R. A. (N. S.) 826.
"It is plain that the statement by a party to a cause of his bodily and nervous symptoms, made long after the occurrence of the accident to which he attributes them, and for purposes connected with the preparation for trial of a suit in which his condition of health is material, and not made to a physician for the purpose of obtaining advice or treatment, are not admissible in evidence in his own favor as proof of the truth of the matter stated." Cronin v. Fitchburg & L. St. R. Co., 181 Mass. 202, 203, 63 N.E. 335 (92 Am. St. Rep. 408).
"If the statements were made to a physician not in attendance on the patient, but for the purpose of preparing him to testify, an opinion based thereon is not admissible, though an opinion based on an examination of the plaintiff during the trial, at the defendant's request, has been accepted, with a suggestion that the general rule of exclusion would have applied if the examination had been by the plaintiff's own witness alone, in preparation for trial." 11 R. C. L. 613, § 35.
3 Wigmore on Evidence, 2216, 2217, § 1722.
The authority to support the text cited by the erudite author is Roosa v. Loan Co., 132 Mass. 439. The physician testifying in that case was treating the party. A different rule governs that kind of a case from the rule controlling the instant case. The difference in the rulings of the various jurisdictions is whether a physician called by the plaintiff for the express purpose of qualifying himself to testify might repeat what plaintiff said to him regarding his suffering and nature of his injury. We think the better rule, as announced by the majority of cases, excludes statements made by the plaintiff regarding his past suffering. There is no authority that I have been able to find which admits statements made by plaintiff to a physician regarding the cause of the injury or the manner in which it was received or other details regarding the event in which plaintiff claims to have received the injury. The statement to Dr. Smith that she had been nervous was harmless, because the doctor found from his examination, and so testified, that plaintiff was nervous. He explained in detail the tests he made in order to testify to that effect.
The objection made by defendant to the repetition by Dr. Smith of plaintiff's narration to him of the manner in which she received the injury, the cause of her injury, and the nature of her suffering should have been sustained. But the evidence is probably harmless, because the plaintiff herself testified directly to these injuries and to the other facts repeated by her to her witness Dr. Smith. There seems to have been no dispute as to the manner the injuries were received. The testimony of Dr. Smith might have been very damaging under some conditions, and should have been excluded. A physician might be permitted under some circumstances, even where he is called by the plaintiff for the express purpose of testifying, to relate what plaintiff said about her suffering at that particular time, but not her past suffering, and such should be admitted with great caution. A large discretion should be left to the trial...
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