Kansas City Southern Railway Co. v. Miller

Kirby, J., (after stating the facts). It is contended first that the court erred in denying the petition for the removal of the case to the United States District Court, it being insisted that the cause of action did not arise under the Employers’ Liability Act of Congress. (1) The injury occurred in disconnecting the steam line on a passenger train running from Kansas City, Mo., to Port Arthur, Texas, through De Queen, Ark., where the engines were changed, while the employee was detaehing the engine from the train in order to couple on another engine for the continuation of the run. The case on this point is ruled by the decision in Kansas City So. Ry. Co. v. Leslie, 112 Ark. 305, where the question was decided adversely to the contention. (2) It is also urged that the court erred in permitting the plaintiff’s attorneys to become sureties on the bond for costs and in refusing to require him to give such bond with other security. The plaintiff being a nonresident of the State, was. required, under the- law, to give bond with sufficient security for the payment of all costs which might accrue in the action, -and the attorneys bringing his suit without such bond having been given are by the law made responsible for the payment of all costs of the -action until the bond is given. Kirin’s Digest, § § 959-964. The attorneys being made liable for the payment of the costs of suit are bound for the costs before the bond is given, and we see no reason why such attorneys should not be permitted to become sureties upon the cost bond if the clerk is satisfied with their financial responsibility, and there is no prohibition in the statute against their becoming such surety, and no -error was committed in refusing to require -a bond given -with other sureties. Neither do we think there was any error committed in allowing the witness 'Sanders to testify that it was necessary for the inspectors to do their work in a hurry since as he also stated the train only stopped at that station for about ten minutes, and the 'plaintiff alleged in his complaint that the work was required to be done in a hurry because of the shortness of the time in which it could be done. This fact would not have excused the inspector from ascertaining by pressing, or opening the test valve, whether the steam line was charged at the time of disconnecting it, nor appellee’s failure to do so, from being negligence, nor was admission of this witness’s understanding of it being the duty of the train employees to cut off the steam from the line and open the valve, error under the circumstances, and it could not have been prejudicial in any event since the conductor, brakeman, and engineer all testified that it was tbeir duty to do this, and that they had done it in this instance. We do not think the testimony of Doctor Lanier open to the objection that it was based upon hearsay evidence, and the court did not err in the admission of it within the principle announced in St. Louis, I. M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S. W. 494. (3) It is strongly urged that the court erred in excluding the testimony of Doctors Mann and Archer, which was most material as it conduced strongly to show that plaintiff’s eyes were not injured materially or at all by the escape of the steam from the steam line as alleged, Doctor Archer having examined and treated him immediately after the injury. The testimony, of these witnesses, neither of whom was called by appellee, was excluded under section 3098, Kirby’s Digest, by the court, on the ground that the information was obtained from the patient while attending him in a professional character, and necessary to enable them to prescribe as physicians. (4) Appellant insists that appellee, by bringing suit for the injury and becoming a witness and detailing the facts, the treatment thereof, and the condition resulting from it, thereby waived the privilege granted to him by the statute, and cites many cases from other jurisdictions in support of his contention. While there is much reason for holding that the privilege is waived under such conditions, and that in the interest of justice, the truth of the matter should be discovered by the testimony of the physicians, the patient having disclosed and detailed tne facts of the injury minutely, and the treatment thereof, our court has taken the other view and held that the privilege is not thereby waived. Collins v. Mack, 31 Ark. 684; M. & N. A. Rd. Co. v. Daniels, 98 Ark. 352. It is said in the latter case, of the statute, “This enactment was manifestly made for the benefit -of the patient. * * * Being enacted for his benefit, the provision was adopted out-of reasons of public policy as a privilege accorded solely to the patient, and, like any other privilege, it is one that the patient may waive, * * * in order to obtain the benefit of the physicians’ evidence. When this privilege is waived as to any particular witness, the opposing side is entitled to. the benefit of the waiver as to such witness. But the benefit of -such waiver in behalf of the adversary should not extend further than to the witness who has been called by the patient, or to other physicians who may have been present upon the same occasion to which the witness testifies. By virtue of the statute, the patient alone is given the right to remove the ban of secrecy. * * * The statute affords him this privilege when the testimony of the offered witness does not relate to the same occasion as that from which the patient has removed the seal of secrecy. ’ ’ In Arizona & New Mexico Ry. Co. v. Clark, 35 Supreme C. R. 210, the United -States Supreme Court construed a statute of Nebraska which provides that a physician -or surgeon can not be examined without the consent of his patient, as to any communication made by the patient with reference to any physical or supposed physical disease or any knowledge obtained by a personal examination of such patient, “ provided, that if a person offer himself .as witnes-s and voluntarily testify with reference to isuch communication, tbalt is ito be deemed a consent to the examination of such physician,” and held that the privilege was not waived by the voluntary testimony of the patient relative to his physical condition at the time of his examination by a physician. Decisions construing the statutes of other States unlike ours, are of little value as a guide to the meaning of our own statute in which there is no provision relative to the waiver of the privilege, and we adhere to the views announced in Railway v. Daniels, supra, for the reasons there given and hold that no error wa-s committed in excluding the testimony of these physicians. Neither do we agree with .appellant's contention that Doctor Mann’s testimony was admissible, for the reason that he did not in fact make the examination and ascertain the condition of plaintiff’s eyes in the capacity of his physician, not having in fact been employed by nor treated him. It i-s undisputed, however, that appellee went to Doctor Mann and consulted him about his injury and permitted the examination to he made with a view to engaging his professional services, and that the information was necessary to enable him to prescribe as a physician and acquired for that purpose, and the fact that appellee after the examination discovered that the physician was employed by the appellant company to treat its injured employees, and declined to engage him to treat his injuries, would not permit the physician to disclose the information so acquired over the patient’s objection. The instructions given fairly submitted the issues to the jury, and such of appellant’s requested instructions as were refused were sufficiently covered by the instructions given, and we do not find that the court erred in the giving or refusing of instructions. (5) As to assumption of risk, it was not shown that it was the duty of the inspector to examine the steam line to ascertain whether or not it was charged. It is true, however, that one of appellant’s witnesses testified that under the printed rules of the company, such was his duty, but no such printed rule was produced, nor does the testimony show any such rule was ever called to appellee’s attention, nor that any verbal instructions to this effect were ever givén to appellee, and he could not be bound by rules not brought to his attention. In Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S. W. (Ark.) 99, the court .said, quoting syllabus, “It is the duty of ¡the master to make rules for the protection of his servants, and to make these rules known to the servants, and there is no .affirmative duty devolving upon the servants to .ascertain what the rules are. ’ ’ The testimony of appellant’s servants show that it was the duty of the train crew to cut off the steam and drain the steam line, that it was their custom to do this, and that they attempted to, or did do- it, before the train came into De Queen, where the engine was detached, and the injury occurred, and, besides, the appellee testified that he pressed the tell-tale valve, and it did not disclose that the steam line was charged. Upon the whole case, we do not find any prejudicial error committed, and the judgment is affirmed.