William Laurie Company v. McCullough
| Decision Date | 23 February 1910 |
| Docket Number | 21,414 |
| Citation | 90 N.E. 1014,174 Ind. 477 |
| Parties | William Laurie Company v. McCullough |
| Court | Indiana Supreme Court |
Rehearing Denied July 1, 1910, Reported at: 174 Ind. 477 at 490.
From Superior Court of Marion County (73,444); Pliny W Bartholomew, Judge.
Action by Anna B. McCullough against the William Laurie Company. From a judgment on a verdict for plaintiff for $ 10,000 defendant appeals.
Reversed.
James Bingham, Charles Remster, John B. Elam, James W. Fesler and Harvey J. Elam, for appellant.
William N. Harding, Alfred R. Hovey, Clifton R. Cameron, Omer U. Newman and Albert M. Bristor, for appellee.
Appellee recovered judgment for a personal injury sustained by reason of appellant's alleged negligence. The complaint, briefly summarized, avers in substance that, on December 3, 1906, appellant was engaged in selling dry goods, notions and other merchandise, at retail, at a certain place in Indianapolis; and, by displaying goods in show windows and otherwise, invited the public to visit its place of business and to inspect and buy merchandise, therein kept for sale; that on said date appellee entered said place of business for the purpose of purchasing goods; that before appellee entered said storeroom, appellant had carelessly and negligently caused a floor dressing of a greasy and oily nature to be placed upon and spread over the surface of the floor upon which persons entering said store were compelled to walk, which caused said floor to become and remain oily, greasy, slippery and dangerous to walk upon, as appellant then and there well knew, and appellant carelessly and negligently permitted said conditions to remain and continue without notice or warning thereof to persons entering or walking about said store; that when appellee entered said store, as aforesaid, the room was insufficiently lighted and was crowded with people, and she had no notice, warning or knowledge of the oily, greasy, slick, slippery and dangerous condition of the floor, and, believing it to be safe and secure to walk upon, was attempting to pass from one aisle to another in said store through a passageway provided for that purpose, and by reason of the floor's being oily, greasy, slick, slippery and dangerous, as aforesaid, she suddenly slipped and fell to the floor with great force and violence, and thereby inflicted the injuries described, for which damages are demanded.
Appellant's demurrer to the complaint for insufficiency of facts was overruled; and it answered by a general denial. With the general verdict, answers to interrogatories were returned by the jury, upon which appellant unsuccessfully moved for judgment. Appellant's motion for a new trial was overruled, and judgment rendered upon the general verdict. Errors have been assigned upon the overruling of appellant's (1) demurrer to the complaint, (2) motion for judgment on the answers of the jury to interrogatories, notwithstanding the general verdict, and (3) motion for a new trial.
The first assignment is not insisted upon or in any manner presented or supported in appellant's brief, and must therefore be regarded as waived. Stamets v. Mitchenor (1906), 165 Ind. 672, 75 N.E. 579; Major v. Miller (1905), 165 Ind. 275, 75 N.E. 159; Storer v. Markley (1905), 164 Ind. 535, 73 N.E. 1081.
The following interrogatory was propounded to the jury: "Did defendant know at the time plaintiff fell upon its floor that the floor where plaintiff fell was oily, greasy, slick, slippery and dangerous to walk upon?" The answer was: "No evidence." It is upon the answer to this interrogatory that appellant bases its insistence that judgment in its favor should have been rendered, notwithstanding the general verdict. The president of appellant company testified that the dressing was placed upon the floor in question on December 3, and the jury so found the fact, and found further that the dressing was not properly applied, and that the floor was oily, greasy, slick, slippery and dangerous to walk upon at the time of the accident.
The general verdict will not be overthrown by an answer to an interrogatory, unless the fact specially found relates to a material matter and is so repugnant to the general verdict that both cannot be true. If it appears from the answers to interrogatories in this case that an element essential to appellee's recovery was not established by the evidence, then the general verdict cannot stand. Farmers, etc., Ins. Assn. v. Stewart (1906), 167 Ind. 544, 79 N.E. 490; Pennsylvania Co. v. Meyers (1894), 136 Ind. 242, 36 N.E. 32; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261, 29 N.E. 1069.
An answer of "No evidence" to an interrogatory submitted to a jury is a finding against the party having the burden as to the proposition stated in such interrogatory. Union Traction Co. v. Howard (1910), 173 Ind. 335, 90 N.E. 764; Chicago, etc., R. Co. v. Wilfong (1910), 173 Ind. 308, 90 N.E. 307; Cleveland, etc., R. Co. v. Hayes (1906), 167 Ind. 454, 79 N.E. 448; Indianapolis Abattoir Co. v. Temperly (1903), 159 Ind. 651, 64 N.E. 906; Arcade File Works v. Juteau (1896), 15 Ind.App. 460, 40 N.E. 818.
It is the duty of the court to reconcile the special answers with each other and with the general verdict, if it can reasonably be done; but if such special findings are inconsistent and contradictory of each other they will not control the general verdict.
The jury in this case found, as heretofore shown, that appellant placed the dressing upon the floor two days before the accident, whereby the floor was made "oily, greasy, slick, slippery and dangerous to walk upon." Appellant was manifestly bound to know of the existence of conditions which it intentionally created, and was chargeable with knowledge of the probable consequences of its acts. The finding that there was "no evidence" on the subject of appellant's knowledge of the condition of the floor at the time of the accident is in direct conflict with the preceding finding that it made the conditions of which appellee complains. A finding with respect to knowledge ordinarily includes both actual and constructive, but the jury probably meant by its answer of "No evidence," in this connection, that appellant had no actual knowledge of any danger to be apprehended from the use of the floor dressing. The general verdict found that the condition of the floor was dangerous, and continued in that state for such length of time as to charge appellant with knowledge of the danger, and hence to make it liable for the consequences. The interrogatory is objectionable in form, but, without further elaboration, we are clear that, taken in connection with others, it is not sufficient to overthrow the general verdict; and the court did not err in overruling appellant's motion for judgment in its favor.
Appellant's motion for a new trial embraced nearly one hundred specified grounds or reasons; but, we shall consider in detail only three, which have been urged as most important and controlling.
It appeared from the evidence that prior to the accident upon which this action is founded appellee had been treated by Doctor Kolmer and Mr. Zink, who were not called by her as witnesses in this case; and, in the course of argument to the jury, appellant's counsel said: "Why did plaintiff not have Doctor Kolmer and Mr. Zink here to testify to her condition, if she did not have curvature of the spine?" Which statement, upon objection of appellee's counsel, the court directed the jury to disregard, and to this action of the court appellant excepted.
It is provided by statute that § 520 Burns 1908, § 497 R. S. 1881.
The statute was designed to subserve the good of society and to promote a full disclosure of all facts and conditions necessary to a correct diagnosis and proper treatment of human ailments, by securing the patient against involuntary disclosure of information given in confidence. The prohibition of the statute is absolute in its terms, yet its provisions were made for the protection of the patient, and the privilege of secrecy granted may be waived by the one directly concerned. It is manifest that in many instances the physician may acquire, by virtue of his office, only such information as might, with propriety and without embarrassment to the patient, be published to the world while in other cases a disclosure would be revolting to the sensibilities of the public and injuriously affect the business and social standing of the patient in the community, without any countervailing good results. It is obvious, therefore, that the patient may, with good reasons, be clothed with a discretion to waive the privilege of secrecy. The purposes of this statute are broader than the exigencies of any given lawsuit, and in the legislative judgment the considerations of public policy and general advantage to mankind from the establishment of inviolable confidence between physician and patient outweigh the private interests of any particular litigant. In electing not to call his physician as a witness, it is clear that a party may have motives and potent reasons in noway involving the suppression of evidence prejudicial to his interests in the case on trial. The law grants to the patient the unqualified right to exclude the testimony of his physician as to facts acquired in confidence, and the exercise of this privilege cannot be impaired by allowing opposing counsel in argument to impugn his motives or charge him with suppressing important and relevant evidence. The general rule,...
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