Doll v. Scandrett

¹ Reported in 276 N.W. 281. Action for damages arising out of a collision between an automobile in which plaintiff was riding as a guest passenger and one of defendants' trains. There was a verdict in plaintiff's favor, and the appeal is taken from an order denying defendants' motion for judgment notwithstanding the verdict or for a new trial.

The accident occurred about three o'clock in the afternoon of December 6, 1935, at a railroad crossing located at the westerly side of the village of Collis. The sedan in which plaintiff and three other persons were riding approached the crossing from the east and was struck by one of defendants' trains coming from the north.

For a distance of about 50 feet east of the crossing the view to the north was unobstructed although there was testimony that visibility was affected by reason of a mist and fog. The wind was blowing from the northwest, and the windows on the north side of the automobile were frosted so as further to interfere with plaintiff's vision to the north.

The complaint does not allege the specific acts of negligence with which defendants were charged, but the proof offered by plaintiff was to the effect that defendants violated the provisions of 2 Mason Minn. St. 1927, § 10263, in failing to ring the bell and sound the whistle for the crossing where the accident occurred. Defendants denied negligence and contended that plaintiff's injuries were due to her own negligence and that of the driver of the car.

1. Three occupants of the automobile testified that the statutory signals were not given. True, their statements at the trial with regard to this matter were at variance with previous statements given to representatives of the railroad company, but the credibility of their testimony was for the jury. One Willette, a witness for plaintiff, who resided near the crossing and saw the collision, testified that the whistle was not blown nor the bell rung for this cross-ing although he admitted that the whistle was sounded for a crossing 800 feet north of the one at which the accident occurred. Defendants produced several witnesses who testified positively that the signals were given.

The evidence would have supported a finding that the whistle was sounded and the bell rung, but such finding is not required as a matter of law. The question was properly for the jury. Setosky v. Duluth, S. S. A. Ry. Co. 173 Minn. 7,216 N.W. 245; Fink v. N. P. Ry. Co. 162 Minn. 365, 203 N.W. 47.

2. Plaintiff testified, and was corroborated by the testimony of the other occupants of the automobile, that the driver stopped the car some 25 feet east of the track. She also testified that she looked to the north but did not see the train approaching. Taking into consideration the climatic conditions and the frosted windows of the vehicle, which must have materially interfered with plaintiff's view, it appears to us that the situation in which plaintiff found herself was quite distinguishable from those in any of the cases relied upon by defendants. It was for the jury to determine whether, under existing conditions, plaintiff was negligent in failing to see the approaching train and to warn the driver of the automobile in sufficient time to prevent the accident. Howe v. M. St. P. S. S. M. Ry. Co. 62 Minn. 71, 64 N.W. 102, 30 L.R.A. 684,54 A.S.R. 616; Hollister v. Hines, 150 Minn. 185, 184 N.W. 856.

3. It is next urged that the verdict is excessive and is founded in part upon testimony pertaining to ailments not shown to be associated with any injury resulting from the collision. At the trial plaintiff testified to certain disabilities, which if shown to have proximately resulted from the accident would have justified an award of substantial damages.

Two months after her discharge from the hospital where she was taken after the accident, plaintiff returned for an examination by her attending physicians. Pus was discovered in her urine, a condition which did not exist during the week following her injury. Her physician attributed the pus to an infection of the kidney. Nowhere in the record do we find any testimony of a medical nature attributing plaintiff's disability resulting from the kidney condition to the injuries she received in the accident, nor any testimony from which the jury could have found a causal connection. We believe that permitting the jury to hear an extended discussion of an existing condition which they might infer resulted from the accident without medical testimony to support such inference was prejudicial.

Plaintiff, as a basis for sustaining the verdict, contends that aside from the objectionable testimony plaintiff made a showing that would justify an award in the amount received, and that under the court's instruction the jury was prohibited from awarding damages other than those which were the proximate result of defendants' negligence. The difficulty lies in the fact that there is no way of knowing what part of the amount awarded was based upon competent evidence and what part was based upon incompetent evidence. Because of this fatal defect, we feel that defendants are entitled to a new trial on the question of damages. Error in the admission of evidence is ground for a new trial if it is obvious from a consideration of the whole case that substantial prejudice resulted to the adverse party. Salo v. Duluth I. R. R. Co. 121 Minn. 78,140 N.W. 188; 5 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934, 1937) § 7180.

4. Plaintiff was treated at the Oliver Clinic in Graceville. Dr. McKenna, a member of that clinic as witness for plaintiff, testified at length as to her condition and treatment. Defendants called Dr. Oliver, an associate of Dr. McKenna, and offered his conclusions concerning plaintiff's injuries, based upon examinations made with Dr. McKenna. Objection by plaintiff on the ground of privilege was sustained. That ruling is assigned as error.

Plaintiff testified in her own behalf as to her injuries and the results. She also called one of two attending physicians as a witness and disclosed by him the conditions found upon examination. Thereby, defendants argue, she waived the privilege afforded her by 2 Mason Minn. St. 1927, § 9814 (4), against disclosure by physicians. The precise question has never been decided by this court. We have held that the privilege afforded by the statute is not waived by the bringing of an action (unless it be against the physician himself for malpractice), or by a patient himself testifying concerning injuries sustained and the treatment received. Polin v. St. Paul U. D. Co. 159 Minn. 410, 199 N.W. 87; Burke v. C. N.W. Ry. Co. 131 Minn. 209, 154 N.W. 960; Marfia v. G. N. Ry. Co.124 Minn. 466, 145 N.W. 385; McAllister v. St. Paul City Ry. Co. 105 Minn. 1, 116 N.W. 917; Hilary v. Minneapolis St. Ry. Co. 104 Minn. 432, 116 N.W. 933.

Some courts hold the privilege not waived when a patient discloses through an attending physician the results of his examination, so as to permit an adverse party without the consent of the patient to call another physician who was present at the examination to relate the results of his findings and conclusions. Jones v. City of Caldwell,20 Idaho, 5, 116 P. 110, 48 L.R.A.(N.S.) 119; Brookhaven Lbr. Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 482; U.S. F. G. Co. v. Hood,124 Miss. 548, 87 So. 115, 15 A.L.R. 605.

Other courts hold the contrary. Chaffee v. Kaufman,113 Kan. 254, 214 P. 618; Schlarb v. Henderson (Ind.), 4 N.E.2d 205; Morris v. New York, O. W. Ry. Co. 148 N.Y. 88, 42 N.E. 410,51 A.S.R. 675; Cretney v. Woodmen Accident Co. 196 Wis. 29,219 N.W. 448, 62 A.L.R. 675; 5 Jones, Evidence, p. 4188; Abbott, Facts (5 ed.) p. 1277; Steinberg v. New York L. Ins. Co. 263 N.Y. 45, 188 N.E. 152, 90 A.L.R. 642, 646, note. In Cretney v. Woodmen Accident Co. 196 Wis. 29, 36, 219 N.W. 448, 450,62 A.L.R. 675, the question is answered, tersely, in these words:

"When consent is given for the disclosure by one physician the reason for the statute no longer exists, and the waiver is a waiver of the whole privilege and not a consent to the introduction of the testimony of designated witnesses. Maine v. Maryland Cas. Co. 172 Wis. 350, 178 N.W. 749,15 A.L.R. 1536."

Adopting the rule of the latter cases, we hold that where the examination and treatment of a patient by two or more physicians or surgeons is a unitary affair and the patient permits one of them to testify concerning the whole subject matter, the privilege afforded by the statute is thereby waived.

That conclusion involves nothing whatever of statutory construction. It goes no further than to affirm that the stated conduct of the patient amounts to a waiver of his privilege, which is that of the patient and not the physician. To whatever extent possible, judges should take care that it is not made an instrument for cheating justice. Olson v. Court of Honor,100 Minn. 117, 123, 110 N.W. 374, 8 L.R.A. (N.S.) 521,117 A.S.R. 676, 10 Ann. Cas. 622.

It is highly important if not determinative of the present inquiry that the subject matter of the privilege consists of the disclosures made orally by the patient plus the condition found by the physician in the course of his examination and treatment. Hence, if two or more physicians or surgeons participate in one examination or treatment, or one course of examination and treatment, and the patient later makes one of them his own witness to testify fully about the whole matter, the patient has thereby himself removed the statutory lid and so has waived the right to keep it on. The subject matter having been so opened to public scrutiny by the patient himself through the lips of one of his attending physicians, he is in no position to object on the ground of privilege if the other be called as a witness.

That conclusion comes entirely apart from the unfairness of permitting a litigant, so inclined, to let triers of fact look at his condition through the testimony of one of the two physicians while simultaneously preventing their viewing it also through the testimony of the other.

It follows that the order under review must be reversed and the case remanded for a new trial, which, however, will be confined to the issue of the amount of plaintiff's damage. The other issues will be considered as settled by the verdict at the first trial. Such error as we have found concerns the issue of damage alone; hence there is no occasion for retrying any other.

So ordered.