William Laurie Co. v. McCullough , 174 Ind. 477 ( 1910 )

Montgomery, J.

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 busine-ss 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 walls* 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 inteirogatories, notwithstanding the general verdict, and (3) motion for a new trial.

1. 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; Major v. Miller (1905), 165 Ind. 275; Storer v. Markley (1905), 164 Ind. 535.

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.

2. 3. 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; Pennsylvania Co. v. Meyers (1894), 136 Ind. 242; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261.

4. 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; Chicago, etc., R. Co. v. Wilfong (1910), 173 Ind. 308; Cleveland, etc., R. Co. v. Hayes (1906), 167 Ind. 454; Indianapolis Abattoir Co. v. Temperly (1903), 159 Ind. 651; Arcade File Works v. Juteau (1896), 15 Ind. App. 460.

2. 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.

5. 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.”

6. 5. 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 ivas “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.

7. It is provided by statute that “The following persons shall not be competent witnesses: * * * Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases.” §520 Burns 1908, §497 R. S. 1881.

8. 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 j udgment 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, authorizing an inference from the withholding of important and material evidence upon the matter in issue, that such evidence if heard would be prejudicial to the cause of the party having it in his pcover to produce it, has no application to privileged communications which the law excludes on grounds of public policy. The court in this case properly denied counsel for appellant the right to comment upon the failure of appellee to call Doctor Kolmer as a witness in her behalf, and in directing the jury to disregard the statement made on that subject. Brackney v. Fogle (1901), 156 Ind. 535; Lane v. Spokane Falls, etc., R. Co. (1899), 21 Wash. 119, 57 Pac. 367, 75 Am. St. 821, 46 L. R. A. 153; Freeman v. Fogg (1890), 82 Me. 408, 19 Atl. 907; Graves v. United States (1893), 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021. The holding in the case of City of Warsaw v. Fisher (1900), 24 Ind. App. 46, to the effect that adverse counsel have a right to comment on the failure of a party to avail himself of the testimony of his physician, is disapproved.

9. Appellant, by proper questions, sought to show that the floor dressing to which this accident is attributed was in use in other stores in the city of Indianapolis at and prior to the time appellee received her injury, the experience of appellant in the use of this floor dressing through a term of years, and that no similar accidents had occurred. All such evidence was ex'cluded.

Appellant insists that the proffered testimony was competent as tending to prove that appellant was not lacking in the exercise of ordinary care for the safety of its customers, and was not chargeable with actionable negligence, so long as its conduct measured up to the standard exemplified by the general custom and practice prevailing among persons in like situation and engaged in similar business. In the case of Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564, relating to the inspection of a car, this court said: “No man is held to a higher degree of skill or care than a fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. If the inspection is made in the usual and ordinary way, the way commonly adopted by those in like business, it cannot be said that it was done negligently. In determining whether an inspection was made with ordinary care, a jury can only find facts showing whether the same was made in the usual and ordinary manner, the one commonly adopted by men of ordinary care and prudence engaged in the same business under like circumstances. If it was so performed it was made with due care, and a jury cannot be permitted to say that it was negligent. They cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of a community.” See, also, Connor v. Citizens St. R. Co. (1896), 146 Ind. 430, 442; Lake Shore, etc., R. Co. v. McCormick (1881), 74 Ind. 440.

10. 9. 11. 12. 9. Appellant, as the owner and occupant of the building in question, having induced appellee to enter therein, by an implied invitation, owed her the duty of using reasonable or ordinary care to have and keep its premises in safe and suitable condition, so that she would not be unnecessarily or unreasonably exposed to danger. As a general rule the custom and usages of well-appointed and well-managed concerns in the business, or with respect to the particular matter, under investigation, are competent evidence on the question of the care and diligence required in the proper conduct of such busiHess or in the performance of the particular act under consideration. If a person charged with contributory-negligence is shown to have exercised that degree of cam for his own safety which persons of ordinary prudence in like circumstances are accustomed to use, it may )>e declared as a matter of law that he is not guilty of such negligence. The relation of master and servant is eontractual, and the servant is held to an assumption of the ordinary risks and hazards of the business in which he engages, and the master to the exercise of that degree of care for the safety of the servant, which men of ordinary prudence engaged in the same line of business commonly employ under like circumstances. In other negligence eases, not founded upon contractual obligations, in which the use of ordinary care for the safety of others is required, it is defined in the same general terms, as that care which persons of average pradenee ordinarily use in like circumstances, but its application is usually more difficult by reason of the distinctive circumstances of the particular case. In such cases, as hearing upon the question of negligence, the custom, usage and practice, if any, with respect to the inculpatory act, of other well-appointed and prudently-managed concerns engaged in a similar business are clearly competent. A class of tradesmen, for a time, might suffer a negligent usage or practice to continue, and might not exercise that regard for the safety of others which should he exacted, but in the end the only standards known to the law are human, and such as men of reasonable prudence and care establish. It is apparent that the weight to be accorded to any such custom or usage must depend upon the extent or the universality of its use and its age or continuance in time, among other circumstances. Our conclusion is that in this case, and the class of eases to which it belongs, the custom of using the same kind of or similar floor dressings in other stores and public buildings was competent hut not conclusive evidence upon the question of appellant’s negligence. The offered testimony upon this subject was material, and should have been admitted for the consideration of the jury, together with other facts and circumstances given in evidence, and the court erred in excluding it. Knickerbocker Ice Co. v. Gray (1908), 171 Ind. 395; Anderson v. Fielding (1904), 92 Minn. 42, 99 N. W. 357, 104 Am. St. 665; Grand Rapids, etc., R. Co. v. Huntley (1878), 38 Mich. 537, 31 Am. Rep. 321; Louisville, etc., R. Co. v. Allen (1885), 78 Ala. 494; Jones v. Malvern Lumber Co. (1893), 58 Ark. 125, 23 S. W. 679; Keim v. City of Fort Dodge (1904), 126 Iowa 27, 101 N. W. 443; Cooper v. Central Railroad., etc. (1876), 44 Iowa 134; Smith v. St. Louis, etc., R. Co. (1878), 69 Mo. 32, 33 Am. Rep. 484; McCarthy v. Boston Duck Co. (1896), 165 Mass. 165, 42 N. E. 568; Devaney v. Degnon-McLean Construction Co. (1903), 79 N. Y. Supp. 1050; Kehler v. Schwenk (1892), 151 Pa. St. 505, 25 Atl. 130, 31 Am. St. 777; Fritz v. Western Union Tel. Co. (1902), 25 Utah 263, 71 Pac. 209; Boyce v. Wilbur Lumber Co. (1903), 119 Wis. 642, 97 N. W. 563.

Appellant also had a right to introduce evidence showing the length of time it had been using this floor dressing on its store floors, the extent of the use of such floors by the public, under conditions substantially similar to those existing at the time appellee sustained her injuries, and the fact, if true, that no prior accidents had occurred from such use. If hundreds or thousands of people had used this floor under similar conditions in safety, and without accident through a term of years, such fact should have some weight as tending to prove that the floor was not unusually dangerous, and that appellant was not lacking in diligence in failing to anticipate and provide against some such accident, and that appellee’s injury was in some measure chargeable to her own failure to exercise that care which others of ordinary prudence used in the same circumstances. Stringham v. Hilton (1888), 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483; Myers v. Hudson Iron Co. (1889), 150 Mass. 125, 22 N. E. 631, 15 Am. St. 176; St. Louis National Stock-Yards v. Godfrey (1902), 198 Ill. 288, 65 N. E. 90.

13. Prior to the time of receiving the injuries for which she sues, appellee, upon the advice of a physician, took treatment consisting of gymnastic exercises, of James L. Zink, superintendent of the Zink Gymnastic and Orthopedic Institute. Appellant introduced Zink as a witness, and offered to prove by him what he knew of appellee’s physical deformity and infirmities, both from his own examination and from what she told him while under his care. Zink had never applied for or received a physician’s license, and was not a physician as defined by our statute. The offered evidence was excluded as privileged, under the provisions of §520 Burns 1908, §497 R. S. 1881, excluding physicians as witnesses “as to matter communicated to them, as such, by patients, in the course of their professional business. ’ ’

14. “The word ‘physician’ is defined to mean a person who has received the degree of doctor of medicine from an incorporated institution; one lawfully engaged in the practice of medicine.” 30 Cyc. 1544.

15. It is made unlawful for any one to practice rnedicine in this State without first obtaining a license so to do; and practicing medicine without license is punishable as a misdemeanor. §§8400, 8410 Burns 1908, Acts 1897 p. 255, §§1, 9.

13. Information gained by a physician while in attendance upon his patient was not privileged at common law; but as hereinbefore shown it has boen made so by statute in this State, and in many other states. This statute is in derogation of the common law, and is not to be enlarged by intendment. It manifestly relates to general practitioners and those only whose business as a whole comes fairly within the definition of “physician.” By the terms pf the statutes in some of the states the ban of secrecy is extended only to information given to those “authorized” to practice medicine or surgery; but, as we have seen, the word physician includes those only who are “lawfully” engaged in the practice of medicine, and therefore duly authorized to pursue that vocation. This is the sense in which it is used in our statute. It will not be presumed that this exceptional privilege was intended to apply to transactions between citizens and charlatans or impostors whose business is conducted in violation of the law, nor can it be extended, by construction, to persons employing other curative processes which do not come within the ordinary meaning of the term “practicing medicine.” Wiel v. Cowles (1887), 45 Hun 307.

It is held that a statute prohibiting any person authorized to practice medicine or surgery from disclosing any information acquired while attending in his professional character, had no application to dentists (People v. DeFrance [1895], 104 Mich. 563, 62 N. W. 709, 28 L. R. A. 139), nor to a druggist furnishing medicines to a person applying for them (Brown v. Hannibal, etc., R. Co. [1877], 66 Mo. 588), nor to a veterinary surgeon (Hendershot v. Western Union Tel. Co. [1898], 106 Iowa 529, 76 N. W. 828, 68 Am. St. 313).

The statute of Colorado excludes the testimony of physicians authorized under the laws of that state, and the evidence of physicians authorized to practice in another state was held competent. Head Camp, etc., v. Loeher (1902), 17 Colo. App. 247, 68 Pac. 136; Colorado Springs, etc., R. Co. v. Fogelsong (1908), 42 Colo. 341, 94 Pac. 356.

The New York courts hold that when a party seeks to exclude evidence under a statute similar to ours, the burden is upon him to bring the ease within its purview. People v. Schuyler (1887), 106 N. Y. 298; People v. Koerner (1897), 154 N. Y. 355.

The witness Zink was not a physician within the meaning of that word as used in §520, supra, and made no claim to be such, and the information which he acquired while giving appellee a course in gymnastic exercises was not privileged.

Alleged errors, predicated upon the giving and refusing to give certain instructions, have been, presented, but they will probably not arise again, since a decision of the questions already considered disposes of the chief matters in controversy between opposing counsel. The errors in excluding testimony, as before indicated, entitle appellant to a new trial.

The judgment is reversed, with directions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.