Shaw v. City of Nampa

• Citation: 171 P. 1132,31 Idaho 347
• Parties: NETTIE L. SHAW, Respondent, v. CITY OF NAMPA, a Municipal Corporation, Appellant
• Decision Date: 20 March 1918
• Court: United States State Supreme Court of Idaho

171 P. 1132

31 Idaho 347

NETTIE L. SHAW, Respondent, v. CITY OF NAMPA, a Municipal Corporation, Appellant

Supreme Court of Idaho

March 20, 1918

EVIDENCE-PRIVILEGED COMMUNICATION-CONFLICTING EVIDENCE-EXCESSIVE DAMAGES.

1. Where a physician is employed to take an X-ray picture of a fractured arm, and helps to interpret the picture and advises with the patient's regular physician as to the treatment such physician should not be allowed to testify as to facts learned by him during such employment, if the patient claims the privilege granted by Rev. Codes, sec. 5958, par. 4.

2. Where the evidence is conflicting and there is substantial evidence to support the verdict, the judgment will not be disturbed.

3. Where a lady sixty-one years of age received a fracture of the arm and other injuries of a minor nature, which fracture resulted in a permanent stiffness of the arm and kept her from work for about five months, during which time she suffered severe pain, $2,000 damages is not excessive.

[As to confidential and privileged communications in case of a medical witness, see notes in 33 Am.Rep. 435; Ann.Cas. 1916A 403]

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Wm. P O'Connor and Jackson & Walters, for Appellant.

It would be a clear abuse of the privilege rule to permit the respondent and her witness, Dr. Farrer, to go upon the stand and tell all that they wished about the fracture and the alleged condition of the respondent's arm, and then by invoking the privilege rule, draw a veil of secrecy over the mouth of the photographer. There was no communication, no consultation, no treatment, and respondent could not legally claim the benefit of the privilege rule. (4 Wigmore on Evidence, p. 3354, sec. 2383 (b); James v. State, 124 Wis. 130, 102 N.W. 320; 40 Cyc. 2382 (b), 2384 (c), (v).)

The doctor occupied the position of a third person who overhears the communication or who stands by and acquires knowledge of the facts and circumstances of the matter at issue. Such third person is always a competent witness. (4 Wigmore on Evidence, p. 3353, secs. 2381, 2382; Smoot v. Kansas City, 194 Mo. 513, 92 S.W. 363.)

In view of the age of the respondent at the time of the injury, the verdict was excessive and so disproportionate to the injury sustained as to evince passion or prejudice on the part of the jury. (Poreba v. Illinois Midland Coal Co., 156 Ill.App. 140; Vilicki v. New York Transp. Co., 65 Misc. 43, 119 N.Y.S. 220; Hase v. City of Seattle, 57 Wash. 230, 107 P. 515; Heath v. Seattle Taxicab Co., 73 Wash. 177, 131 P. 843; McCabe v. City of Butte, 46 Mont. 65, 125 P. 133; Barter v. Stewart Mining Co., 24 Idaho 540, 135 P. 68; Beaton v. City of St. Maries, 27 Idaho 638, 151 P. 996.)

Thos. E. Buckner and W. C. Bicknell, for Respondent.

The testimony of respondent shows the injury to the arm and bruises on other limbs; also pain and suffering and other damages. The amount of damages was then a question for the jury. (Horn v. Boise City Canal Co., 7 Idaho 640, 65 P. 145; Tarr v. Oregon Short Line R. Co., 14 Idaho 192, 125 Am. St. 151, 93 P. 957.)

A much larger verdict and judgment under the facts in this case would have been sustained. (Keim v. Gilmore & P. R. Co., 23 Idaho 511, 131 P. 656; Johnson v. St. Paul City Ry. Co., 67 Minn. 260, 69 N.W. 900, 36 L. R. A. 586.)

As to the question of allowing Dr. Cole to testify to information acquired by him in taking X-ray photographs of the injured arm and shoulder, we cite Jones v. City of Caldwell, 23 Idaho 467, 130 P. 995.

This was prescribing for the patient within the meaning of sec. 5958, subd. 4, Rev. Codes. To hold that information thus acquired is not privileged under this statute would be to put a construction on it that would rob it of its true spirit, intent and purpose.

DAVIS, District Judge. Budge, C. J., and Morgan, J., concur.

OPINION

DAVIS, District Judge.

This action was instituted to recover damages for personal injuries received by the respondent. It appears from the evidence that while walking along a certain sidewalk with her daughter, the respondent fell over a loose board, thereby breaking her arm and bruising her body. The jury returned a verdict in her favor, assessing damages in the sum of $ 2,000. Judgment was entered, from which this appeal is taken.

Several errors are specified in the admission and rejection of evidence, all of which have been examined and are held to be without merit. The only one we deem necessary to discuss is that which deals with the subject of privileged communication.

When the respondent was injured, she employed Dr. Kellogg as her physician. He immediately took her to Caldwell, where he employed Dr. Cole to take an X-ray picture of the broken arm. After the picture was taken and developed Dr. Cole consulted with Dr. Kellogg relative to the interpretation of the picture and the treatment to be administered. Counsel for the respondent objected to Dr. Cole testifying as to any facts learned while he was thus employed,...