Smart v. Kansas City
| Decision Date | 24 December 1907 |
| Parties | STELLA SMART, Appellant, v. KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. A. D. Burnes, Judge.
Affirmed.
Henry J. Latshaw, Jr., for appellant.
Information acquired by a physician or a surgeon from a patient while attending him in a professional character, and which information is necessary in order to enable him to prescribe for such patient, is incompetent evidence when objected to by the plaintiff. R. S. 1899, sec. 4659; Smoot v. Kansas City, 92 S.W. 363; Hayworth v. Co., 94 Mo.App 215; Weitz v. Co., 53 Mo.App. 39. In order to carry out the purpose and the spirit of these statutes, the courts hold this prohibition includes not only the physician in charge of the patient, but it extends to physicians brought in consultation by the physician in charge or by third parties. Renihan v. Dennin, 103 N.Y. 573; Prader v. Accident Assn., 95 Iowa 156; Edington v. Ins Co., 67 N.Y. 194. And it also applies to a partner of the attending physician, even though said partner in no way prescribes for the patient. Raymond v. Railroad, 65 Ia. 152; Ins. Co. v. Denning, 123 Ind. 384. Dr Fulton was plaintiff's physician, notwithstanding he was not employed by plaintiff. Grossman v. Supreme Lodge K. & L. of H., 53 Hun (N. Y.) 637; Weitz v. Railroad, 53 Mo.App. 39; Hayworth v. Railroad, 94 Mo.App. 225; People v. Murphy, 101 N.Y. 128; Colorado Fuel Co. v. Cummings, 8 Col. App. 541; Freel v. Co., 97 Cal. 40; Railroad v. Mushrush, 11 Ind.App. 192; Kiest v. Railroad, 110 Ia. 32; Raymond v. Burlington, 65 Ia. 152; Gratton v. Co., 24 Hun (N. Y.) 43; Renihan v. Dennin, 103 N.Y. 573. And this is true even though the doctor had been called against plaintiff's expressed desires. Meyer v. Sup. Lodge K. of P., 64 L. R. A. 839. Information, as used in these statutes, includes knowledge gained by the physician in looking at the patient or examining the patient, as well as verbal communications between patient and physician. Smoot v. Kansas City, 92 S.W. 363; Gartside v. Co., 76 Mo. 447; Kling v. Kansas City, 27 Mo.App. 231. The answer of Dr. Jones is not responsive to the question -- clearly not. The question was not, what precipitated the amputation, nor what caused the amputation, but simply, and plainly and clearly, what brought that disease to that particular limb and that particular part of that limb. The question was for the purpose of getting Dr. Jones to state whether the reoccurrence of this ailment was due to plaintiff's fall on the sidewalk, or to some other cause. Dr. Jones did not answer the question propounded to him, but, on the contrary, answered a very different question. Therefore, appellant says that respondent's proper remedy, and respondent's only remedy, was by motion to strike out the answer of the witness, as not responsive to the question. This is the well-settled law in this State, to which there is no exception. Murphy v. Railroad, 102 S.W. 66; Barr v. Kansas City, 121 Mo. 29; Hollenbeck v. Railroad, 141 Mo. 97; State v. Eisenhour, 132 Mo. 145; Waddell v. Railroad, 113 Mo.App. 687. Appellant respectfully suggests that this question is not at issue in this case, for the further reason that Dr. Jones did not testify the fall caused the amputation, nor did he use words that can be properly construed to mean that the fall caused the amputation, but he testified to the exact contrary. He said that the injury precipitated the amputation. Precipitation does not mean to cause -- it means to hasten; and especially to hasten in an undue or premature manner. Detrich v. Railroad, 102 S.W. 1044. Therefore, it surely cannot be said Dr. Jones testified that the fall was the cause of the amputation.
Edwin C. Meservey and Wm. A. Knotts for respondent.
(1) The trial court properly granted a new trial, because said court erred in excluding the testimony of Dr. Fulton. (a) Because the filing of the petition herein was a waiver of any claim to exemption under section 4659, Revised Statutes 1899. 4 Wigmore on Evidence, p. 3355, secs. 2388, 2389; Cramer v. Hurt, 154 Mo. 112; State v. Depositor, 21 Nev. 107; Becknell v. Hosier, 10 Ind.App. 5; Treanor v. Railroad, 16 N. Y. Supp, 538. (b) Because Dr. Fulton was not plaintiff's physician and his testimony did not come within the exemption of the statute. Schermer v. McMahon, 39 Mo.App. 36; Henry v. Railroad, 57 Hun 76; James v. State, 102 N.W. 320; Scripps v. Foster, 41 Mich. 748; Estate Freeman, 46 Hun 461; Griffith v. Railroad, 171 N.Y. 106; Lowenstein's Will, 2 Misc. (N. Y.) 325; People v. Koerner, 154 N.Y. 366; People v. Sliney, 137 N.Y. 580; Fisher v. Fisher, 129 N.Y. 655; Brendl Will, 102 Wis. 45. When Dr. Fulton testified in the former trial of this case plaintiff waived any privilege as to testimony contained in bill of exceptions and the trial judge properly granted a new trial for failure to admit same. Elliott v. K. C., 96 S.W. 1023; Webb v. Railroad, 89 Mo.App. 611; Elliott v. Kansas City, 96 S.W. 1023. (2) Defendant is not precluded from showing by the record here that it was entitled to a new trial, notwithstanding the trial court only specified one reason for a new trial, when there was other error upon which it would have been proper to have sustained defendant's motion for a new trial. Emmons v. Quade, 176 Mo. 29; Gray v. Railroad, 54 Mo.App. 670; Ittner v. Hughes, 133 Mo. 692. (3) The trial court properly granted a new trial because said court erred in excluding the testimony of Dr. Griffith, Dr. Stanley, Dr. Lane and Dr. Enne, because the testimony of said doctors did not come within the exemption of the statute. When Dr. Griffith testified in the former trial of this case plaintiff waived privilege as to testimony contained in bill of exceptions made at said trial. Elliott v. K. C., 96 S.W. 1023. (4) The trial court properly granted a new trial because said court erred in excluding the testimony of Dr. Frederick, together with the record of the city hospital, showing diagnosis of plaintiff's case entered therein while she was in the said city hospital. 1 Elliott on Evidence (Ed. 1904), p. 742, sec. 635, note 10. (5) The trial court properly granted a new trial because said court erred in refusing to sustain defendant's objections to the testimony of plaintiff's only witness, Dr. Brummel Jones, as to whether or not the injury caused the amputation. (a) The question asked said witness being based upon the evidence of the trial that the doctor heard, when he had not heard all of the testimony in the case. Connell v. McNutt, 109 Mich. 332; Sancher v. People, 22 N.Y. 154. (b) Because said question and answer are the conclusion of the witness, when the question of whether or not the accident produced the amputation was a question for the jury. Glasgow v. Railroad, 191 Mo. 347; Taylor v. Railroad, 185 Mo. 239; Mfg. Co. v. Dorgan, 16 U.S. App. 299; Elliott v. Russell, 92 Ind. 526; Craig v. Company, 98 Ind. 111; Stoddard v. Winchester, 157 Mass. 575; Link v. Sheldon, 136 Mass. 9. (6) The court erred in giving that part of the instruction which permitted the jury to consider the fact that plaintiff's leg was amputated by reason of the accident. Smillie v. St. Bernard Dollar Store, 47 Mo.App. 406; Smith v. Bank, 99 Mass. 605; Searles v. Railroad, 101 N.Y. 661; Bond v. Smith, 113 N.Y. 378; Pauley v. Steam Co., 137 N.Y. 417. (7) This instruction erroneously permitted the jury to consider the aggravation of plaintiff's existing ailments. Watson on Damages (Ed. 1901), sec. 206; Fuller v. Mayor City Jackson, 92 Mich. 197; Wilkinson v. Detroit Co., 73 Mich. 405.
WOODSON, J. Valliant, J., concurs; Graves, J., concurs in result, but dissents as to paragraphs two and three; and Lamm, J., concurs in result in separate opinion in which Graves, J., concurs.
In Banc.
-- This is a suit which was instituted by the plaintiff against defendant, in the circuit court of Jackson county, asking damages in the sum of twenty-five thousand dollars for personal injuries sustained by her through the alleged negligence of defendant in permitting a coal hole in one of its streets to become out of repair and remain in a dangerous condition for pedestrians to pass over, and that while passing over it she stumbled and fell upon her knee and side, and, as a result, received an injury to her right knee, which resulted in the amputation of her right leg above the knee.
As there are no complaints lodged against the pleadings, it will serve no good purpose in setting them out in this opinion.
The evidence tended to establish the following facts:
On February 26, 1898, plaintiff was walking south on the west side of Wyandotte street in defendant city, with a bundle of clothing she had made and was carrying to the owner. In front of No. 1012 Wyandotte street there was a coal hole in the sidewalk, constructed of a metallic cylinder and a round lid the evidence for plaintiff tended to show the cylinder extended from two to four inches above the stone sidewalk, while that of the defendant tended to show it extended above the surface of the walk not to exceed one-half to three-quarters of an inch; and all the evidence tended to show that it had been in the same condition for years that it was in on the day of the injury; that when she reached said coal hole she struck her right foot against it, which caused her to trip and fall and thereby caused her knee to strike the metal cover and greatly bruise and injure it, and pushed the knee cap to one side, toward the inner side of her limb; that by-standers assisted her to a passing buggy, and she was driven to her home, where she remained a few days, where the limb was examined by a massagist, who was not admitted to practice, and her knee was found to be bruised and...
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