Summary
In Powell v. J.J. Newman Lumber Co., 174 Miss. 685, 165 So. 299, Powell, who claimed to have been injured as a result of negligence on the part of the appellee, was examined by a physician.
Summary of this case from Donaldson v. Life & Casualty Insurance Co. of TennesseeOpinion
No. 31891.
January 13, 1936.
1. RAILROADS.
In pedestrian's action for injuries allegedly sustained when he was struck by chain swinging from passing log car, evidence held to sustain finding for company operating log car.
2. APPEAL AND ERROR. Trial.
In negligence action, instruction requiring plaintiff to prove case to "satisfaction of jury" held erroneous as equivalent to requiring proof beyond a reasonable doubt, instead of by preponderance of evidence, but not to require reversal where substantial justice lay in jury's verdict.
3. APPEAL AND ERROR. Evidence.
Permitting physician in absence of jury, but over objection of plaintiff, to testify to his examination of plaintiff, and permitting framing of hypothetical question to be asked physician before jury as expert, embracing matters testified to by him, held error, but not reversible where verdict contained substantial justice (Code 1930, section 1536).
APPEAL from the circuit court of Forrest county; HON.W.J. PACK, Judge.
Cephus Anderson and T.J. Wills, both of Hattiesburg, for appellant.
Section 1536, Code of 1930, is in this language: "All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
In the case of Railroad v. Messina, 109 Miss. 143, 67 So. 963, this court held that the evidence of a physician as to knowledge gained by reason of his employment as such could not be disclosed without the consent of the patient; that the privilege was for the benefit of the patient, and not of the physician.
United States Fidelity Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115; Newton Oil Mill v. Spencer, 116 Miss. 567, 77 So. 605; Hamel v. Ry. Co., 113 Miss. 344, 74 So. 276.
Whatever may have been the reason for the enactment of the statute, the statute expressly prohibits a physician from testifying without the consent of the patient. The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judgment and the public may hear the statement of the physician in such case, though it be excluded from the jury. In such case the question ought to be directed to ascertaining whether the physician has knowledge by reason of the relation of physician and patient, and, if it was so acquired, it ought to be excluded.
McCaw v. Turner, 126 Miss. 206, 88 So. 705; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Pa. R.R. Co. v. Durkee, 147 Fed. 99.
We submit that it is not anything like as prejudicial to the patient to have the jury draw no unfavorable inferences against the defendant because he did not call the plaintiff's physician, as it is to permit the defendant to call the plaintiff's physician and compel the plaintiff, in the presence of the jury, to claim the privilege afforded him by statute.
The statutes guaranteed to him the privilege and protection to permit the doctor to be called, and objection to be forced to be made in the presence of the jury, was highly prejudicial. The plaintiff's case, after that occurrence, would stand no show of fair and impartial consideration at the hands of the jury.
Gulf, Mobile Northern R.R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551; Miss. Power Light Co. v. Jordan, 164 Miss. 174, 143 So. 483.
The nurses' knowledge of the plaintiff in this case was acquired while preparing the plaintiff for the examination by the physician. They were assisting the physician, to that extent, their testimony was incompetent.
Gulf, Mobile Northern R.R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551.
The court in an instruction told the jury that the plaintiff must prove to your satisfaction, by a preponderance of the testimony that he was injured on the occasion referred to in his declaration. This instruction was erroneous.
In a civil case it is only required to prove by a preponderance of the evidence the fact in issue and certainly that preponderance of evidence is not required to be more or greater than necessary to reasonably satisfy the mind of the jury. The court cannot tell them that they must be satisfied.
Lamar Hennington and Heidelberg Roberts, all of Hattiesburg, for appellee.
What was said by the court was said in the absence of the jury and could not have influenced the jury in its verdict. But in defense of the trial court we submit he was correct.
N.O. N.E.R.R. Co. v. Scarlett, 115 Miss. 285, 76 So. 265; Railroad Co. v. Robinson, 106 Miss. 896, 64 So. 838.
The question of whether or not a doctor is barred from qualifying as an expert and answering hypothetical questions merely by reason of the fact that at some former time the party whose interest might be adversely affected thereby was a patient of the physician has been decided against the position of appellant.
Estes v. McGehee, 133 Miss. 174, 97 So. 530; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Watkins, 106 So. 753.
The case of Miss. Power Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, clearly recognizes the rule that the statute does not apply to a nurse, and the only information which she is barred from disclosing is where she is acting as an assistant of the physician and while so acting acquires knowledge by reason of the assistance then being rendered in the presence of the physician, or by reason of communications between the patient and the physician, and this applies only to information gained in this manner.
Nurses employed by hospitals are not within the rule which would make them incompetent witnesses.
Goodman v. Lang, 158 Miss. 204, 130 So. 50.
"Mere accident" causing injury is where no one is negligent and no one was to blame.
Ticknor v. Seattle-Renton Stage Line, 247 P. 1, 139 Wn. 354; Lighthall v. Wilson, 15 S.W.2d 690; Alabama Great Southern R.R. Co. v. Brown, 75 S.E. 330, 138 Ga. 328; Alabama V. Ry. Co. v. Groome, 52 So. 703, 97 Miss. 201.
Appellant next complains of a series of instructions granted the appellee dealing with the burden of proof, particularly because they contained the expression "to the satisfaction of the jury." In practically every one of these instructions, the expression quoted is followed by the further expression "by a preponderance of the testimony." Counsel cite no authority whatsoever in support of their contention that these instructions were erroneous.
Cranston v. N.O. N.E.R.R. Co., No. 30,332, decided by the court without opinion on January 23, 1933.
Shoemaker v. Indiana Ry., 133 N.E. 591.
Even if there was any technical error in these instructions, which is denied, still, the universal rule is that all of the instructions in the case must be construed together as one and interpreted as a whole, and if when so viewed they embody the applicable law there is no error though one taken alone is incomplete.
Friedman v. Allen, 152 Miss. 377, 118 So. 828; Landrum v. Ellington, 152 Miss. 569, 122 So. 444; Carlisle v. City of Laurel, 156 Miss. 410, 124 So. 786; Hammond v. Morris, 156 Miss. 802, 126 So. 906.
Even if there is a defect in an instruction, yet if when all are read together the law is fairly presented there will be no reversal because of such defect.
Bass v. Burnett, 151 Miss. 852, 119 So. 827; Durrett v. Mississippian Ry. Co., 158 So. 776.
We do not concede for one minute that there was any error committed by the lower court in favor of the appellee in this case. But even if there had been, this court could not, we submit, reverse the judgment of the lower court. On the facts developed and demonstrations had before the jury on the trial of this case, the court could have with propriety directed a verdict in favor of the defendant. The testimony of the plaintiff was not only contrary to the overwhelming weight of the testimony, but his testimony was inconsistent with the physical facts and with natural laws and common knowledge.
Miss. Central R.R. Co. v. Smith, 154 So. 533; National Box Co. v. Bradley, 157 So. 92.
Argued orally by Cephus Anderson, for appellee.
The plaintiff, Lige Powell, appellant here, brought suit against the J.J. Newman Lumber Company, appellee here, for an alleged personal injury. The declaration states that the J.J. Newman Lumber Company operates log cars upon which they carry logs from Perry and Greene counties into the mill plant in the city of Hattiesburg; that these log cars were constructed of timber; and that the logs were carried parallel to the cars and fastened thereto by means of toggle chains, and that when the cars were emptied, the chains were placed on the cars in such manner as to be unsafe, not being properly fastened, and being permitted to drag. That the appellant was traveling on Highway 49 east upon a private truck which developed engine trouble, and he started to walk back to Hattiesburg and came to the point where the highway crossed the tracks of the railroad company; that a log car was approaching, and appellant stopped to await its passing; and that one of the toggle chains swung in such a manner as to strike the appellant around the body and then struck a telephone post. The declaration further states that the appellant suffered severely from such injury, and that his eyes were injured by dirt, etc., and that when some one picked him up and carried him to a hospital, the hospital refused to receive him because he did not have the money to pay his expenses, and that he went to a private residence where he remained until he was able to go to his home. A witness for the appellant testified that he came along on the evening in question, and that when he reached the point where Highway 49 crosses the railroad tracks he observed the appellant and a negro lying out by the side of the ditch, and that there was a piece of chain on the appellant, and that chain was also wrapped around the telephone post; that he took the appellant to the hospital in Hattiesburg and they declined to receive him.
The appellant alone testified as to where and how he was injured, and the negro who was alleged to have been with him was not introduced as a witness.
The nurses at the hospital testified that the appellant came there, and that they observed him and saw no injuries, and that he walked out, and, apparently, he had no injuries.
The appellant was examined by a physician who was permitted, in the absence of the jury, to testify as to his examination of the appellant, and this physician stated that appellant had no injuries other than a little sand in his eyes. This evidence was not permitted to go to the jury, but the physician was placed on the stand and testified as an expert, and as such testified that if the appellant had been injured as he claimed to have been injured, he could not have walked out of the hospital. This physician denied that the appellant had been refused admission to the hospital because of lack of money, but because there were no injuries to be treated which required hospitalization. There was objection to the testimony of this physician, and to the testimony of the nurses, which latter objection was by the court overruled, as was also the objection to the testimony of the physician in answer to the hypothetical questions propounded to him as an expert.
The appellee investigated as soon as it was notified that the appellant claimed to have been injured, and had examinations made of the place and all the log cars. According to the evidence for the appellee, there was no sign of a chain having been dragged along the track, and no sign of any injury to the stop sign at the crossing, or at the telephone post, and that the chain must have moved, according to the evidence, by this stop sign to the point where the alleged injury occurred. The testimony for the appellee showed that the logs were fastened by a piece of iron forming a U bolt, and could not be pulled out on account of the method by which same was fastened, and that none had ever been pulled out in the history of the operations of the appellee.
It was shown that one of the cars had this U staple removed. It was the theory of the appellant that the chain was severed by being run over by one of the wheels on the track, and he testified that he saw sparks emanating from the track just prior to being struck.
The testimony of the alleged experts for the appellee showed that the chain, if severed, would drop and not fly out to the side of the car as indicated by the appellant's evidence.
This is a mere rough outline of the evidence, which is rather prolix, and on the evidence the jury found a verdict for the J.J. Newman Lumber Company.
We have examined all the evidence, and we think, if the jury had found for the appellant, the court would not have permitted the verdict to stand, and while there are features of the trial which we do not approve, as will presently appear, we would not reverse the finding of the jury upon the character of evidence in this record, because we conceive that substantial justice lies in the verdict of the jury on the facts contained in the record.
Some of the instructions tell the jury that before they could find for the plaintiff he must have proven to their satisfaction a certain hypothesis, as for instance: "The court instructs the jury for the defendant that before you can find a verdict against the defendant in this case, the plaintiff must have proven to your satisfaction that the defendant was guilty of negligence, and in this connection, the court tells you that negligence means a failure to exercise that degree of care which a reasonably prudent person would have exercised under the circumstances." The court should not have required a plaintiff to prove a case to the satisfaction of the jury without qualifying the standard and measure of evidence necessary. The words "satisfaction of the jury" were improper. It should have been stated as "by a preponderance of the evidence." The giving of instructions containing the phrase "to the satisfaction of the jury" may or may not be reversible error according to the facts of the given case. It has been pointed out by this court heretofore that the word "satisfaction," unlimited by other language, was equivalent to requiring proof beyond a reasonable doubt; but in the case at bar we would not reverse for this error.
We also think it was error for the court to admit the evidence of a physician called by a party to the suit over the objection of the patient. The statute (Code 1930, section 1536) makes the matter of communications to a physician, and what he learns in the course of his examination of a patient, privileged, and it cannot be introduced or divulged without the consent of the patient. In ruling on this objection, the trial court said: "Our court has decided that question two ways. One way they held that if the testimony of the doctor was not before them, they were not able to pass on it; the other, that it was improper to interrogate the doctor at all, either in the presence or absence of the jury, but where the plaintiff himself has disclosed all the facts pertaining to the injury, and the doctor is offered in the absence of the jury, the court has been holding, and will hold now, for the purpose of the record only, that the doctor may testify. Let the objection be overruled."
We do not understand that the court has ruled two ways upon this proposition. In defense of this ruling, the appellee cites New Orleans N.E.R. Co. v. Scarlet, 115 Miss. 285, 76 So. 265, 266, wherein the court said: "We cannot review the exclusion by the court below of certain testimony sought to be elicited by appellant from Dr. Reynolds on his examination in chief; for the reason that, while the record discloses the questions sought to be propounded to the witness, it does not disclose what his answers thereto would have been so that we may judge of the materiality and relevancy thereof to the issue being tried, and, if material, whether appellant was prejudiced by the exclusion thereof," citing Mississippi Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, which does not hold that a physician may be examined in the absence of the jury, but in the presence of the court. The well-known practice is for counsel to state what he expects to prove by a physician, if permitted. This is quite different from having the physician mount the witness stand in the presence of the court, attorneys, and audience, and disclose all private and privileged matters covered by the statute giving the patient the right of privileged communications. In Mississippi Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 842, cited in the Scarlet case, supra, the court said that: "The proper practice is for the party whose evidence is rejected to state and show by his bill of exceptions what the tenor of the proposed testimony was, in order that the trial judge, and this court on appeal, may determine its relevancy and competency." A statement by counsel to the court as to what he expects to prove will carry to the legal and judicial mind the purpose of the evidence as freely as though it would if testified to, but it makes a very different impression upon the popular and nonlegal mind. Such statements are often termed "lawyers' talk," and do not carry to the popular mind the full truth of the purported testimony, and are less prejudicial than would be the testimony of a physician who would probably disclose in full the privileged matters.
In United States F. G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605, we distinctly held that it was not proper to permit a physician to testify, even in the absence of the jury, as to privileged matters, except with the consent of the patient, holding that the inquiry should be limited to determining whether such relation of physician and patient existed, and that, if so, all matters learned by him by virtue of such relation should not be permitted to be disclosed to the court.
It is true that in some cases we have held that a physician could testify as an expert to matters that he did not learn in the relation of physician and patient. Estes v. McGehee, 133 Miss. 174, 97 So. 530; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Watkins v. Watkins, 142 Miss. 210, 106 So. 753. But in the case of Gulf M. N.R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551, 552, the matter was discussed, and we supposed was clearly settled in the minds of the bench and bar that the testimony of physicians could not be admitted even in the absence of the jury, but if the matter was not privileged testimony it could be developed by examination of the witness in the absence of the jury. In that case a dentist was offered as a witness for the defendant as to the extent of injuries suffered which knocked some of his teeth loose. We there held that a dentist was not a physician, and that the statute would not be extended to include persons not within its terms, and further that there was no sufficient statement of facts expected to be developed by this witness if permitted to testify. As shown by the record, that case called for the testimony of a dentist. To a suggestion of error filed therein Judge GRIFFITH said as follows: "To the rule last stated there are a few exceptions, and one of these is when a witness is tendered and it is sought to examine him upon matters which the law forbids him to disclose. For instance, the law forbids that an attorney shall disclose the knowledge which he has acquired from or for his client in and about his client's business. When an attorney is placed on the witness stand and, without his client's consent, it is attempted to interrogate him about his client's business, the witness is not only privileged to refuse to answer, it is his duty to refuse. And the offerer cannot state into the record what he expects to prove by that witness, for the law denies the right to prove by that witness anything of the matters sought to be elicited. Likewise as to a physician, upon which subject this court said in United States F. G. Co. v. Hood, 124 Miss. 548, 571, 87 So. 115, 15 A.L.R. 605: `The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury.' In these cases if the knowledge sought to be placed in the record was acquired during the existence of the relationship which makes the information privileged, then the inquiry is not permitted to proceed further than to develop the actual existence of the privileged relationship."
It will be seen that we have distinctly held that it is not permissible to examine a physician over the objection of a patient as to matters communicated to the physician, or learned by him as the result of an examination, or communications between a physician and patient. The object of the statute is not merely to protect parties from the result of lawsuits which the evidence might affect, but the object of the statute is to permit people freely to consult physicians about their physical or mental condition, and about any treatment for any ailment they may have or think they have.
It seems to be argued that we could not reverse a case for the violation of the statute where the evidence did not go to the jury. We are unable to assent to this doctrine. We know, as all other men know, that matters of this kind frequently acquire a circulation that reaches, at times, into the secrecy of the jury box and does its damaging work there. In a proper case we would reverse, but just what a proper case would be is not now necessary to announce. We think, however, that the policy of the statute should be strictly observed both by the bench and bar, and that it is not permissible to develop communications before the court in the absence of the jury, and that the framing of hypothetical questions to be asked a physician as an expert, embracing matters testified to by him in the absence of consent, and his answers thereto, should not be allowed.
Notwithstanding the matters above noted, since the judgment contains substantial justice, and also that a verdict contrary to the one rendered would have been reversed, the judgment will be affirmed.
Affirmed.