Woods v. Inc. Town of Lisbon

• Decision Date: 08 May 1908
• Citation: 116 N.W. 143,138 Iowa 402
• Parties: WOODS v. INCORPORATED TOWN OF LISBON.
• Court: Iowa Supreme Court

138 Iowa 402

116 N.W. 143

WOODS

v.INCORPORATED TOWN OF LISBON.

Supreme Court of Iowa.

May 8, 1908.

Appeal from District Court, Linn County; B. H. Miller, Judge.

Suit to recover damages for a personal injury. Verdict and judgment for plaintiff. The defendant appeals. Reversed.Mac. J. Randall and Jamison & Smyth, for appellant.

E. A. Johnson and Chas. W. Kepler & Son, for appellee.

SHERWIN, J.

This is a suit to recover damages alleged to have been caused by a defective sidewalk. It was alleged that the injuries received produced a miscarriage and otherwise permanently injured the plaintiff; that on account of said injuries she was compelled to go to a hospital for treatment where she remained for more than 100 days, all of the time under treatment for the injuries received.

The evidence showed that the plaintiff was pregnant at the time she received the injury complained of, and that almost immediately after she fell there was severe pain in her womb and abdomen. Dr. York was called soon after the accident and treated her for her injuries. The plaintiff testified that on Friday, the second day after the injury was received, she suffered labor pains which continued until the following Sunday when she had a miscarriage. She further testified that Dr. York removed the embryo from the womb with instruments, and that within two or three days thereafter a lump appeared on her right side over the right ovary, and that it grew larger until she was removed to the hospital on the Sunday following. The plaintifftestified further as to the treatment given her at the hospital, and that her right ovary and right fallopian tube were removed soon after she went there. The hospital was in Cedar Rapids, and the operations were performed by the Drs. Crawford of that city with the assistance of Dr. York and in the presence of still others. It was the contention of the defendant that the plaintiff's fall had not produced a miscarriage, and that the operations were made necessary by a diseased condition that existed at the time of the accident. Neither Dr. York nor the Drs. Crawford were called by the plaintiff to show her condition before she was taken to the hospital or at that time, nor did either of them testify as to the character of the operations performed for the plaintiff. Dr. H. W. Bender, a physician of Cedar Rapids, witnessed one of the operations and was called by the defendant to testify relative thereto. On his preliminary examination it appeared that he had never met Dr. York before the day of the operation, and that on that day he met him on the street while on his way to the hospital. Dr. Bender had been employed by the defendant to be present at the operation if possible, and he in fact went to the hospital when Dr. York did. Before reaching the hospital Dr. York told Dr. Bender what the operation was to be, but neither at that time nor at any other time was there any consultation between them as to the case or as to the nature of the operation about to be performed. The testimony showed absolutely that the relation of physician and patient did not exist, that Dr. Bender in no way participated in the work, and that he was merely an observer thereof.

The trial court held him an incompetent witness under section 4608 of the Code. The ruling was erroneous and prejudicial to the defendant. The section provides that “no practicing * * * physician, surgeon * * * who obtains such information by reason of his employment, * * * shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or...