Killings v. Met. Life Ins. Co.

DISSENTING OPINION. The instruction approved by the majority opinion of this Court herein is as follows: "The Court instructs the jury for the defendant that the fact that the plaintiff as not introduced as a witness, Dr. M.W. Waldrup will justify the jury in inferring that had Dr. Waldrup been introduced his testimony would not have been favorable to the plaintiff."

The record in this case shows that the plaintiff in the court below sustained the relationship of patient to physician with three physicians, two of whom were introduced as witnesses, and Waldrup, who had visited him as a physician on one occasion, was not offered by either the plaintiff or the defendant.

In principle, this instruction was condemned in the case of Hobson v. McLeod, 165 Miss. 853, 147 So. 778, 779, wherein it was thought by this Court at that time the case of Henry Johnson v. State, 63 Miss. 313, stated the rule governing all privileged communications wherein we quoted: "It is true, that generally unfavorable inferences may be indulged against a party who fails to produce material and necessary testimony which is within his power and control, but this rule has never been applied to cases where the law, on grounds of public policy, has established privileges against being compelled to produce it."

In Hobson v. McLeod, supra, we further quoted the very convincing and logical reasoning announced in the Johnson case as being approved by the Circuit Court of Appeals of the 2nd Circuit District, in Pennsylvania R. Co. v. Durkee, 147 F. 99, 101, 8 Ann. Cas. 790. In the Durkee case, the Circuit Court of Appeals applied the rule announced in Hobson v. McLeod as being the public policy of the State of New York as to privileged communications. At that time, in the State of New York, communications between penitent and clergyman, client and attorney and patient and physician, were statutory in that State.

Our privileged communication statute, Section 1536, Code of 1930, first appeared in this State in the Code of 1906, Section 3695, at which time many states of the Union had such a statute which had been construed by the Courts; and presumably the Legislature of 1906, in adopting the Code, adopted it with a construction placed upon it by the courts of the various states, as indicated in the Durkee case, supra. This view is sustained in 16 Cyc. 1062-64 and Notes. Also, in 22 C.J. 124, Sec. 59, the text thus states the rule: "Exclusion of Privileged Communication. The more generally accepted view is that no unfavorable inference arises from a party's failure to produce, or refusal to consent to the admission of, testimony of a witness as to privileged communications between himself and such party, but there is also authority for the view that under such circumstances an unfavorable inference will arise or may be drawn by the jury."

The majority opinion cites as evidence of judicial progress, the case of Griggs v. Saginaw, etc. R.R. Co., 196 Mich. 258, 162 N.W. 960, in which case that court approved an instruction which permitted an unfavorable inference against the plaintiff who had two physicians, one of whom he introduced as a witness, and the other he did not. There is no attempt in that case to reason or sustain that position, but the Michigan Court did not there, for the first time, announce its position as to the physician and patient statute. The rule announced in the Griggs case must be based upon the following statement found in the case of Anne Cooley v. Michael Foltz, 85 Mich. 47, 48 N.W. 176, in which the court below permitted the defendant to offer in evidence two physicians of the plaintiff, and the Supreme Court held this error was so patently clear that the defendant had not filed a brief. Having so decided, the Court proceeded to say: "In the event of a new trial it is proper to say that it was competent for the defense to introduce these witnesses, and prove by them that they had been called by the plaintiff to examine and prescribe for her. The failure of the plaintiff to produce them as witnesses was a legitimate fact for the jury in determining the merits of the case." And, this is the logic and reason with which the Michigan Court has permitted a departure from the general rule as to privileged communications. It will be observed that there was no reference to any case, reason or authority, to sustain the advisory dictum.

As to the other evidence of progress cited in the main opinion, attention is called to the case of Arnold v. City of Maryville, 110 Mo. App. 254, 85 S.W. 107, 109, decided in 1905, wherein, in this behalf the Court concluded, as follows: "Therefore, though a physician called to attend upon a plaintiff professionally may learn all about the nature of his injuries, or the disease said to have followed therefrom, and no one else may know so well as he, yet the plaintiff need not call him as a witness, and, if he does not do so, no unfavorable inference should be drawn therefrom. [Citing authorities.]" The Court further said: "It must be clear that if an unfavorable presumption against one should be allowed when he refused to waive his privilege, or failed to call the physician as a witness, the privilege itself would be destroyed, and the policyof the statute thwarted. [Emphasis ours.]"

Subsequently, in 1934, in the case of Waeckerley v. Colonial Baking Company, 228 Mo. App. 1185, 67 S.W.2d 779, the Court, considering the inference, finally reached the conclusion that what occurred in that case was not reversible error at all events; but did not overrule the case of Arnold v. Maryland, supra, or refer to it, nor was any reason given by the Court for changing its position, if it did in fact in the latter case inferentially intend to overrule its former decision.

When we consider that the general rule is that these statutes are construed liberally in favor of those for whose benefit they were passed and the fact that this Court assumed that position as to waived by the patient in the case of Yazoo M.V.R. Co. v. Messina, 109 Miss. 143, 67 So. 963, and especially Illinois Cent. R. Co. v. Messina, 111 Miss. 884, 72 So. 779, until this date, this privileged communication between physician and patient has been put upon the same plane as other privileged communications. In fact, the adherence of this Court to the weight of authority is to be found strongly stated in United States F. G. Company v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605; and Davis, Director General of Railroads, v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666. The latter case is like the case at bar factually.

The privileged communications statute here involved is as much a part of the public policy of this State as the husband and wife statute on that subject. This Court has so treated it. For thirty-three years it has withstood the assaults made almost constantly before the Legislature of this State by those who believe that the statute works injustice and that it suppresses the truth. The Legislature defines the public policy of the State, and in my opinion, it is not for the Court to set up and weigh on scales the relative value of privileged communications unless language can be found in the statute which justifies a Court in finding upon a logical basis that the Legislature intended to make such a distinction. This the Legislature has been besought to do time and again, yet the statute remains in the same words as originally passed. This Court might have logically and reasonably gone with a minority of the courts and held that the plaintiff, by alleging in his pleading the substance of the privilege, and by offering his own evidence or that of others as to the subject of the privilege, had thereby waived it; but this Court declined to do that and now at this late date has emasculated the clear intention of the statute which was reenacted in the Code of 1930, as Section 1536, with the decisions of this Court declining to allow a waiver because the plaintiff had already made public the subject of the privilege.

In our view, the majority opinion cannot be maintained logically. That opinion says in effect that the plaintiff has a right to object to any one of his physicians who sustained to him the relationship of physician and patient, and have that testimony excluded from the hearing of the jury, and at the same time instruct the jury, because the plaintiff insisted upon the law, that an unfavorable inference may be drawn therefrom by the jury. In other words, so far as the jury is concerned, it makes a mystery of the law. A jury would naturally inquire why a physician who attended the patient was not introduced or was not permitted to testify, and then the jury advised by the court that because the letter of the statute was enforced by sustaining an objection to the physician's evidence, but the spirit of the law is destroyed, and the statute emasculated by an instruction from the court that the jury are authorized to draw an unfavorable inference because the physician was not introduced by the patient or was not permitted to testify if introduced by his antagonist. In other words, the trial court says to the jury — "although I have excluded this evidence of this physician, it is not competent and it is not proper for you to hear it, yet, because I have enforced the law in this respect, you, the jury, may infer that the testimony was against the patient."

No difference can be pointed out as to the privilege granted in the husband and wife statute, and the physician and patient statute. Both are now the public policy of the State. This Court, and practically all of the other courts which have given mature consideration to the question, has declared that no inference of fact could be presumed against a party who claimed the privilege to withhold testimony or not produce it.

There seems to be no dispute in the authorities with the rule announced in the Johnson case — that an instruction such as the one here under consideration impinges upon and destroys the privilege.

All that is advanced as argument in the majority position for changing the rule in this State might well be addressed to the question of waiver and would be in line on the question of waiver, with the view cogently stated in Wigmore on Evidence (2 Ed.), vol. 5, pages 220-21, sec. 2389. However, this Court has, in more than thirty cases since the decision in the Messina case, declined to follow Mr. Wigmore's view.

It may be that the statute works injustice. So far as I am personally concerned, in my experience as a trial judge, I have observed cases in which the enforcement of any of the privileged communications statutes or the statute which seals the lips of the living as against the dead does sometimes work hardships and injustice; but, I have concluded long ago that it is the business of the Legislature to adopt by statute the policy of the State, and when the Legislature so declares such a policy, it is the duty of the Court to enforce that policy, and by its enforcement, if injustice results therefrom, then, for the good of the State, the Legislature will be persuaded to repeal or modify it.

I am of the opinion that this case should be reversed for the granting of this instruction.

Smith, C.J., concurs in the above, and is also of the opinion that the instructions complained of violate Section 586, Code of 1930.