Noelle v. Hoquiam Lumber & Shingle Co.

Mount, J. Respondent recovered a judgment against the appellant on account of personal injuries received while working in appellant’s mill. The appellant presents two principal questions for our consideration. The first is that a certificate of approval, issued by the commissioner of labor under .the factory act of 1905, is conclusive of the facts therein certified to by that officer. The second, that where the plaintiff described his injuries without reference to what his attending [520] physicians told him, he thereby waived the privilege of secrecy enjoined by statute upon the physicians. The first question was determined by us in Vosberg v. Michigan Lumber Co., 45 Wash. 670, 89 Pac. 168, where we said: “But the statute itself (Laws 1905, page 164, § 7) makes the certificate only prima facie evidence of a compliance with the provisions of the act, and the court performed its full duty in this respect when it charged the jury to the effect that the certificate was prima facie evidence of a compliance with the statute, and that the burden was on the respondent to overcome that evidence by showing that the gearing causing the injury was not reasonably safeguarded.” See, also, Noren v. Larson Lumber Co., 46 Wash. 241, 89 Pac. 563; Boyle w. Anderson etc. Lumber Co., 46 Wash. 431, 90 Pac. 433. The act is clear upon the question, and we have no desire to modify our opinion in the cases cited. Upon the other question, the plaintiff at the trial testified as to the character of the injuries he received, but did not testify in regard to what the physician who cared for his wounds told him, or as to what the physician did for him. Dr. Campbell, who attended the plaintiff from the outset and who dressed the wounds at the hospital the first time, died shortly before the trial. Two other physicians, who were connected with the hospital, who were associated with Dr. Campbell, and who helped to dress the wounds, were present at the' trial. These doctors were called as witnesses by the appellant to testify to the extent of respondent’s injury, but upon respondent’s objection, the court excluded their evidence under the statute relating to privileged communications. Bal. Code, § 5994 (P. C. § 940). It is argued by appellant that this ruling was error, for the reason that the respondent himself having testified as to the character and extent of the injury he thereby waived his privilege in regard thereto. The statute is as follows: “The following persons shall not be examined as witnesses: . 4. A regular physician or surgeon shall not, without [521] the consent of his patient, be examined in a civil action as to any information, acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient; . . It is clear that, with the consent of the patient, his physician may be called and divulge all the information he has learned in his professional capacity; otherwise not. Many authorities are cited by appellant to the effect that, where the patient himself calls the physician as a witness and permits him to testify concerning the ailment, treatment, and the advice given, this constitutes a waiver of the privilege; and also where the patient testifies to what happened in the presence of the physician or the advice and treatment given or statements made by the physician, the privilege is also waived. The cases so holding are based upon the reason that the patient himself, by testifying in regard to facts which he might have kept secret, thereby breaks the seal of privilege and waives the right to object, because the statute does not intend that such privilege shall be used both as a sword of ■offense and at the same time as a shield of defense. No case has been called to our attention which holds that a person may not describe his injuries as he sees and feels them, without a reference to what his attending physician or surgeon may have told him, and that an adverse party may then call such physician and prove by him that the patient is mistaken or has testified untruthfully. On the other hand, the supreme court of Montana, in the case of May v. Northern Pac. R. Co., reported in 32 Mont. 522, 81 Pac. 328, 70 L. R. A. 111, which is a case very much like this, under a statute like ours, held that a patient, by testifying to the cause of her injuries and their nature and extent, did not thereby waive the privilege granted by the statute. This is a well-considered case and many of the authorities are there collected and discussed. It is directly in point, and the conclusion of that court upon this question accords with our views, and is, we believe, in accord with the weight of authority. [522] It is perhaps true, as argued by appellant, that the injured party and the attending physician may be.the only persons who have knowledge of the extent of an injury, and that if the physician may not testify thereto, great injustice may be done. This, of course, argues against the policy of the statute, which rests with the legislature and not with the courts, and would annul the provisions of the statute entirely. The legislature made no exception to the rule of secrecy where it was necessary to contradict falsehood, but provided for an exception only in case of consent of the patient. No doubt sufficient reason appeared why this should be the only exception. We think the court did not err in excluding the evidence of the attending physician. The judgment must therefore be affirmed. Crow, Dunbar, Rudkin, and Fullerton, JJ., concur.