Angerstein v. Milwaukee Monument Co.

Siebecker, J. The defendant assigned error upon the grounds (1) that the evidence of the physicians who treated plaintiff was improperly received; (2) that the court improperly held that the complaint alleged a cause of action for ordinary negligence; (3) that the evidence fails to sustain the finding of the jury that defendant was guilty of actionable negligence; and (4) that the damages are excessive. The evidence of plaintiff’s physician was properly received. The privilege granted by sec. 4075, Stats., is a privilege of the patient, and plaintiff in the instant case had the right to waive it. Markham v. Hipke, ante, p. 37, 171 N. W. 300. The court, within the rule of Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 128 N. W. 273, and Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 128 N. W. 265, was clearly right in holding that the complaint alleged a cause of action for ordinary negligence. It also appears that the trial proceeded in accordance with this ruling and that defendant offered evidence to show plaintiff’s alleged contributory negligence. We find nothing in the record tending to show that defendant was in any way prejudiced by this ruling of the trial court. An examination of the evidence [504] discloses that the jury's findings on negligence and the amount of damages awarded are amply sustained by the evidence and cannot be disturbed on appeal. By the Court. — The judgment appealed from is affirmed.