Borosich v. Metropolitan Life Insurance , 1926 Wisc. LEXIS 292 ( 1926 )

Vinje, C. J.

Under the ruling made in the case of Maine v. Maryland C. Co. 172 Wis. 350, 178 N. W. 749, to the effect that the statute, sec. 4075," gives a privilege to the patient alone, which upon his death cannot be waived by his executor or by a beneficiary in an insurance policy, the court erred in receiving the evidence of physicians who treated him during his last illness. The same ruling was made in the case of Will of Hunt, 122 Wis. 460, 100 N. W. 874, and since that case was decided the legislature amended the section by substituting for the words “shall not be compelled” the words “shall not be permitted,” thus disclosing an intent to give legislative sanction to the rule established by the court. In the face of such a legislative declaration we cannot depart from.the established rule. It follows that for this reason alone the case must be sent back for a new trial. In view of such new trial it is proper to say that the evidence of the two doctors who performed the autopsy is not barred by the statute, for they did not gain their information for the purpose of treatment. Neither is the testimony of an interne, a nurse, or an attendant barred, because they are not legally admitted to practice and are not physicians within the meaning of the statute.

The judgment must be reversed for another reason. The issue as to the cause of death was one for the jury. As the case stood when both parties rested, there was evidence upon that issue only in favor of the plaintiff. Defendant’s evidence upon that issue had been excluded. It had nothing but the certificate of death and proof of claim to rely upon and there was no dispute as to what they contained. Neither was there any dispute about plaintiff’s evidence as to the cause of death. Both parties, upon such' a record, might well move for a directed verdict. But when the court later reached the conclusion that the defendant’s testimony as to the cause of death had been erroneously excluded, the case opened up a jury issue, and the court could not deprive a party of his right to a jury trial. The cases which the trial court relied upon do not meet the situation of this case. 'In Ott v. Cream City Sand Co. 166 Wis. 228, 164 N. W. 1005, the only issue was upon defendant’s counterclaim, and the plaintiff at the close of the case moved to dismiss it. This the court, and properly so, treated as a motion for a directed verdict in plaintiff’s favor and that he thereby waived a jury trial. No new testimony, as was done here injecting a jury question, was taken. In Sheafor v. Standard Acc. Ins. Co. 170 Wis. 307, 174 N. W. 916, a doctor was allowed to go on the stand, after the dismissal of the jury upon motions by both parties for a directed verdict had been made, and correct his evidence as to a date, there being no claim that the corrected date was not the true one.

When both parties without reservations move for a directed verdict they thereby, under the provisions of sec. 2857a, waive a jury trial as to the entire case. But such entire case is in substance as it then stands. It does not operate as a waiver of a jury on a new trial. In this case the court granted a new trial because of error committed upon the trial just had, and it could not deprive a party of a jury trial upon a jury issue then first permitted to be tried.

By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.