Opinion
Rehearing Denied April 16, 1931
Hearing Granted by Supreme Court May 15, 1931.
Appeal from Superior Court, City and County of San Francisco; Louis H. Ward, Judge.
Action by Peggy Webb and husband against the Francis J. Lewald Coal Company and others. From a judgment for plaintiffs, defendant coal company appeals.
Reversed.
COUNSEL
Hadsell, Sweet & Ingalls, of San Francisco, for appellant.
Walter McGovern, of San Francisco, for respondents.
OPINION
DOOLING, Justice pro tem.
Plaintiffs and respondents sued appellant Lewald Coal Company and the city and county of San Francisco for damages for personal injuries. The evidence showed that on April 2, 1928, a truck belonging to appellant Lewald Coal Company and a street car of defendant city and county of San Francisco came into collision at the intersection of Ashton avenue and Ocean avenue in San Francisco. The result of the impact was that the truck was propelled easterly on Ocean avenue and into the front of a building occupied by respondent Peggy Webb as a millinery store. Peggy Webb testified that she saw the collision and the approach of the truck to the building from the mezzanine floor and immediately after the impact, and as a result of the nervous shock attendant thereon, collapsed and had ever since suffered from extreme nervousness, headaches, sleeplessness, loss of weight, and other nervous disturbances. The jury returned a verdict against both defendants. A new trial was granted to the city and county of San Francisco, but denied to Lewald Coal Company, and the latter prosecutes this appeal.
The first question presented rests upon the claim of appellant that under the testimony of Peggy Webb she was put in fear solely for the safety of the driver of the truck and not for her own safety, and that physical injury caused by fear for the safety of another will not support a recovery for tort. We do not think that the record fairly construed supports appellant’s construction of the evidence. It is true that respondent Peggy Webb testified explicitly that she felt sure the driver of the truck would be killed and when she knew that he was not killed "it was better." It is likewise true that she did not testify explicitly that she was put in fear for her own safety, but she did give this significant testimony: "I got there just as the two came together in the street, the street car and the automobile, and then the machine turned away from the street car; it was a terrific crash then, but he turned away from the street car and headed right straight at us; and we were standing— I was standing and Orlean was seated right at the window, and there was no place to get to, we had to stand and take it, so we just stood and watched him come; it was a great big truck, completely loaded with coal, there wasn’t room for any more, and he headed just straight at us, and he went out of sight under my feet; I felt sure the driver would be killed, felt sure he would be killed. *** And I was frightened, I couldn’t move then; finally I collapsed, and my legs wouldn’t hold me up. I sat on the floor. I couldn’t move." We are satisfied that the fair inference from this evidence is that respondent was frightened for her own safety as well as for that of the driver. Lindley v. Knowlton, 179 Cal. 298, 302, 176 P. 440. It therefore becomes unnecessary for us to decide the question of law urged by appellant on this point. Some complaint is made, under this head, of the allegations of the complaint, but so far as the record shows no demurrer was interposed and no objection made to the introduction of evidence on this ground. The complaint charges "that because and on account of said motor car so entering the said storeroom of said plaintiff, as aforesaid, the said Peggy Webb then and there suffered and sustained and ever since the said 2d day of April, 1928, has and still does suffer and sustain permanent physical pain, suffering and damage," etc. In the absence of a special demurrer, we hold that the complaint sufficiently charges that the physical injury was proximately caused by the collision.
On cross-examination of respondent Peggy Webb it was developed that she had been examined by Dr. Joseph Catton, a physician. Plaintiffs did not produce Dr. Catton as a witness and he was subpoenaed by defendants. When called to the stand he refused to give any testimony concerning his examination of Peggy Webb or his conclusions therefrom. The doctor’s position is made plain by the following statement which he made: "It is not the financial arrangement for my time, Mr. Heidelberg, alone; it is a matter that a doctor is called upon to make a decision when it is an equitable thing for him to give that testimony; by that I mean my office is not a very sacred place if a patient or a lawyer may send a case to me and pay for an opinion and then if I do not happen to be used in that particular case in a certain particular way that he would have the opportunity to come into court and say ‘Don’t go to Joe Catton because if he doesn’t go with you he is available to the other side for a fee.’ "
After an extended discussion in which court, counsel, and the witness participated, the court ruled that Dr. Catton could not be compelled to testify. This ruling of the court in our opinion constituted reversible error. However commendable may have been the ethical objections of Dr. Catton from a professional standpoint, and we can sympathize thoroughly with him in his stand, the policy of the law as declared by the Legislature required the doctor to set aside his scruples and testify concerning those matters about which he had learned from his professional examination of Mrs. Webb. The pertinent portions of section 1881, subdivision 4, of the Code of Civil Procedure provide: "A licensed physician or surgeon can not, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; *** provided, further, that where any person brings an action to recover damages for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician who has prescribed for or treated said person and whose testimony is material in said action shall testify."
The position of the trial court that Dr. Catton could not be compelled to testify unless arrangements were made to compensate him as an expert witness would in effect nullify this quoted section in many cases. All that Dr. Catton need do, if the trial court was correct, to keep from the stand would be to demand such an amount for testifying as would be impracticable for defendants to pay. Such is not the law. "The authorities, however, all agree that, in the absence of an express contract to pay a physician for his testimony as an expert, he is only entitled to the statutory fee. The uniform rule seems to be that a physician who has acquired knowledge of a patient or of specific facts in connection with the patient may be called upon to testify to those facts without any compensation other than the ordinary witness receives for attendance upon court. In those states recognizing the right to extra compensation for a physician who testifies as an expert it is uniformly held that, where such testimony is sought to be elicited without requiring any particular investigation on the part of the physician, he is required to testify without extra compensation." McClenahan v. Keyes, 188 Cal. 574, 583, 206 P. 454, 458.
Respondent claims that there was no sufficient offer of proof to present this question to the appellate court. Defendants stated in this behalf: "We are simply trying to bring out before the jury all the testimony we can as to this lady’s condition. We ascertained Dr. Catton examined the lady; they did not call Dr. Catton and I subpoenaed Dr. Catton." In the nature of things this was the only offer defendants could make. They did not know what Dr. Catton’s testimony would be and could not state what they could not know. The reason for the rule ceasing, the rule itself ceases. The situation was not unlike that existing in cross-examination where it has been said: "A party can hardly be expected to know what his adversary’s witness will testify to on cross-examination, nor could he well state to the court what he expected to elicit by such examination." Harness v. State, 57 Ind. 1, 8; State v. Martino, 27 N.M. 1, 192 P. 507, 509; Cunningham v. Austin & N.W.R. Co., 88 Tex. 534, 31 S.W. 629; Martin v. Elden, 32 Ohio St. 282.
It is folly to urge that it does not appear that appellant was prejudiced by the ruling. Appellant was deprived of the opportunity of showing whether it was injured or not. The language of our Supreme Court in denying a petition for hearing in People v. Stevenson, 103 Cal.App. 82, 93, 284 P. 487, 492, seems particularly appropriate to the facts of this case: "The constitutional provisions impose the burden of showing prejudice or injury by a ruling which is within the power of the complaining party to present. It does not contemplate a situation where such party without fault has been denied an opportunity to determine whether or not he has been prejudically injured."
Appellant was entitled to present the testimony of Dr. Catton. It was denied that right and by that denial it was put out of its power to show to this court what Dr. Catton’s testimony would have been. Under such circumstances prejudice must be presumed. In a case very similar in its facts to this, the Supreme Court of Washington reached the same conclusion that we have here. State v. Superior Court, 154 Wash. 144, 281 P. 335.
The objection to Mrs. Webb’s testimony of her earnings prior to the alleged injury in our opinion goes only to its weight, not to its admissibility. The instructions based on the Motor Vehicle Act correctly stated the law, and we cannot say that the jury might not as reasonable persons find that the failure to comply with the law in those particulars was a proximate cause of the collision.
Judgment reversed.
We concur: TYLER, P.J.; CASHIN, J.