Sund v. Chicago, Rock Island & Pacific Railway Co.

Wilson, C. J. Plaintiff was a locomotive engineer. He sues to recover for personal injuries arising out of the explosion of a locomotive boiler. He charges negligence. Defendant admits liability. The trial involved only the amount. Defendant’s physician attended plaintiff. In preparing for trial plaintiff was examined by three physicians for the purpose of qualifying them as witnesses in his behalf on the trial. They were called and testified. The verdict was for $22,000. Defendant has appealed from an order denying its motion for a new trial. One of the physicians, over the defendant’s objection of self-serving and hearsay, gave an expert opinion based, in part, upon statements made to him by plaintiff which the witness disclosed as follows: “He (plaintiff) said that — one of his complaints was that he couldn’t remember anything; that he had lost his memory, he couldn’t remember people that he had known well.” He complained of * * * loss of memory.” He stated * * * that he was slip *26 ping; also of loss of memory.” “As án example of tbis, be told me that be could not remember people be bad formerly known quite well. He couldn’t remember tbeir names and it was very embarrassing to Mm at times to meet people be bad formerly known and continually pass them up. He also spoke of — while be was in tbe hospital of not remember a nurse.” “He couldn’t think clearly, that is what be told me.” It is tbe settled law in tbis state that mere descriptive statements of a sick or injured person as to tbe symptoms and effects of Ms malady are only admissible under tbe following circumstances: First, They must have been made to a medical attendant for tbe purpose of medical treatment. Second, they must relate to existing pain or other symptoms from which tbe patient is suffering at tbe time, and must not relate to past transactions or symptoms, however closely related to tbe present sickness. Third, such statements are only admissible when tbe medical attendant is called upon to give an expert opinion básed in part upon them. Williams v. G. N. Ry. Co. 68 Minn. 55, 70 N. W. 860, 37 L. R. A. 199; Edlund v. St. P. C. Ry. Co. 78 Minn. 434, 81 N. W. 214; Firkins v. G. W. Ry. Co. 61 Minn. 31, 63 N. W. 172; St. Louis S. W. Ry. Co. v. Martin, 26 Tex. Civ. App. 231, 63 S. W. 1089. There are three reasons why tbe reception of tbe expert opinion was erroneous: The statements were not made for the purpose of medical treatment; they did not relate exclusively to tbe present; the witness was not a “medical attendant.” If tbe witness is not to give an expert opinion, tbe statements are tbe same as if made to a layman. They are self-serving and hearsay. Not being the medical attendant, be cannot disclose tbe descriptive statements. In tbis case it has been suggested: “If tbe defendant desired tbe testimony of tbe doctor as to statements made to him by tbe plaintiff, not to be considered by tbe jury as a true condition of tbe plaintiff’s physical condition, be should have asked for such an instruction, since it was proper to receive such statements made by tbe plaintiff to bis doctor as showing tbe basis upon which tbe doctor based his opinion as to tbe plaintiff’s mental condition.” But tbe witness was not “his doctor.” Tbe suggestion *27 that tbe testimony was properly in tbe case for tbe limited purpose is untenable, and therefore cannot be within the doctrine of State Bank of Winsted v. Strandberg, 148 Minn. 108, 180 N. W. 1006. To permit a physician to give bis opinion based upon tbe record in this case would be to have an expert opinion based upon supposed facts resting only on hearsay and not supported by an oath. Tbe exception to tbe general rule was in recognition of a strong probability that a person who made statements to bis medical attendant for tbe purpose of treatment would tell tbe truth as to bis existing pain and suffering. Under such circumstances there is a strong inducement for the patient to speak truly of bis malady, while it may be otherwise when medically examined for the purpose of creating evidence in bis own behalf. Hence tbe statements expressive of present conditions are permitted to be given as evidence only when made to a physician for tbe purpose of treatment by him. In this case tbe plaintiff did not testify to tbe truthfulness of tbe statements made to the doctor. There was evidence from tbe witness Bertelson that plaintiff suffered loss of memory. But in Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573, tbe reception of such evidence was held error, which was not cured even though tbe plaintiff actually testified that the statements made to the physician were true. It has been long established that the physician can only give in evidence the declarations of the patient as to “a present existing pain or malady.” Insurance Co. v. Mosley, 8 Wall. 397, 19 L. ed. 437. Otherwise it is mere hearsay. Holloway v. Kansas City, 184 Mo. 19, 39, 82 S. W. 89; Gibler v. Q. O. & K. C. Ry. Co. 129 Mo. App. 93, 103, 107 S. W. 1021. The declarations of a party himself, to whomsoever made, are competent evidence when they are expressive of existing pain or suffering. Dun. Dig. § 3292; N. P. Ry. Co. v. Urlin, 158 U. S. 271, 275, 15 Sup. Ct. 840, 39 L. ed. 977. Such are regarded as exclamations or complaints which are the spontaneous manifestations of distress. But descriptive statements of existing pain or suffering are only admissible when made to a medical attendant for the purposes of medical treatment. These *28 descriptive statements not coming within the exception were self-serving as well as .hearsay. Reversed. Holt, J. absent, illness. Stone, J., took no part.