Southwest Metals Co. v. Gomez

• Decision Date: 02 March 1925
• Docket Number: No. 4445.,4445.
• Parties: SOUTHWEST METALS CO. v. GOMEZ.
• Court: U.S. Court of Appeals — Ninth Circuit

39 ALR 1416, 4 F.2d 215 (1925)

SOUTHWEST METALS CO. v. GOMEZ.

No. 4445.

Circuit Court of Appeals, Ninth Circuit.

March 2, 1925.

Anderson, Gale & Miller, of Prescott, Ariz., for plaintiff in error.

Struckmeyer, Jennings & Strouse and D. A. Fraser, all of Phœnix, Ariz., for defendant in error.

Before ROSS, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge (after stating the facts as above).

The objection to the complaint seems to be that it contains no direct averment that the accident caused the infection to the eye, or the subsequent blindness. No doubt, it is the better practice to plead ultimate facts and not evidence, but the plaintiff in error was not injured if the complaint gave it more information than it was justly entitled to. The general rule as to proximate cause applies here as in other cases, and we think it sufficiently appears from the complaint that the accident was the proximate cause of the infection and loss of sight. But, in any event, the complaint contains the direct averment that the accident caused the injury to the eye, and this of itself was sufficient as against a general demurrer.

If the question were an open one, much might be said against the justice and wisdom of a rule that permits a party to a suit to offer testimony tending to show that a physician removed dirt from his eye, or fragments of bone from his leg, and forbids the physician to give testimony controverting that fact; but that such is the effect of the statute of Arizona, as construed by the Supreme Court of the state does not admit of question. Thus, in Arizona Copper Co. v. Garcia, 25 Ariz. 158, 214 P. 317, a brother of the plaintiff testified in his behalf that a physician removed fragments of bone from his leg, and the physician was not permitted to controvert the testimony. See, also, Arizona & New Mexico Ry. Co. v. Clark, 235 U. S. 669, 35 S. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834. That statute of the state, as construed by its highest court, is controlling on this court.

The claim of privilege on behalf of the nurse presents a more difficult question. All the authorities agree that the privilege or exemption does not extend to a third person who is present and overhears the communication between the physician and the patient. Under such circumstances, some of the cases hold that both the physician and the third party may testify, while others hold that as to the physician the privilege is not waived. The defendant in error does not controvert this general rule, but contends that it has no application where the third person acts as agent of or assistant to the physician. We have examined the cases cited in support of this contention and many others, but find that in every case the agent or assistant was himself a physician or surgeon. Thus, in Raymond v. Burlington, C. R. & N. Ry. Co., 65 Iowa 152, 21 N. W. 495, and Ætna Ins. Co. v. Deming, 123 Ind. 384, 25 N. E. 86, 375, it was held that the privilege extends to information acquired by a partner of the physician attending the patient; the partner himself being a physician. In Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709, 14 L. R. A. (N. S.) 565, 123 Am. St. Rep. 415, 13 Ann. Cas. 932, it was held that assistant physicians and surgeons in a hospital come within the exemption. In Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320, 57 Am. Rep. 770, it was held that information obtained by a physician who was called in consultation was privileged. A similar ruling was made in Morris v. New York, O. & W. Ry. Co., 73 Hun, 560, 26 N. Y. S. 342. See, also, Green v. Town of Nebagamain, 113 Wis. 508, 89 N. W. 520; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720; Prader v. National Masonic Accident Ass'n, 95 Iowa, 149, 63 N. W. 601.

The rule excluding hospital records kept under the direction of the physician has no application here, and the same is true of cases where the intervention of a third party is strictly necessary to enable the physician to communicate with the patient. Springer v. Byram, 137 Ind. 15, 36 N. E. 361, 23 L. R. A. 244, 45 Am. St. Rep. 159; and North American Union v. Oleske, 64 Ind. App. 435, 116 N. E. 68.

The statute is limited by its terms to physicians and surgeons, and in this connection it is a significant fact that an earlier paragraph of the same section extends the privilege of the attorney to his secretary, stenographer, and clerk, concerning any fact, the knowledge of which has been acquired in such capacity. We are aware that it has been said that the extension of the exemption to the secretary, stenographer, and clerk of the attorney adds nothing to the statute; but we are far from convinced that such is the case. Many privileges and exemptions allowed to professional men are not enjoyed by their clerks and agents, such as exemption from jury duty, and the like. Furthermore, the privilege between attorney and client, as recognized by the common law, extended to secretaries and clerks, and it might well be held that a general statute recognizing the privilege as...