Epstein v. Pennsylvania Railroad

REYNOLDS, P. J. (after stating the facts). — In the presentation of this case to this court the learned counsel for the appellant, in a very exhaustive brief and argument, makes seven points against the action of the trial court. The first, second and third points relate to the refusal of the court to give the instruc — 149 — tions marked, “Defendant’s instructions B and 0,” and in giving the fourth paragraph of the instruction covering the measure of damage, that is to' say, the paragraph based on the impotency of plaintiff. The fourth point of error assigned is to the admission of the testimony of plaintiff as to his non-intercourse with-his wife. The fifth point alleges error to allow two of the physicians to give their opinions as to the nervous condition of plaintiff, it being claimed that it was in evidence that these physicians could not give such an opinion without relying more or less upon the statements plaintiff made to them. The sixth error assigned is to the action of the court in excluding the testimony of the two physicians whose depositions were offered, and the seventh error assigned is to the action of the court in excluding the testimony of the witness which we have quoted, as to statements made by a physician to the plaintiff, -in the presence and hearing of the witness, as to the extent of the plaintiff’s injuries. Taking up thése propositions in the order made, we dispose of the first one by saying that we do not consider it well taken. We have set out the testimony of the plaintiff himself bearing on the fact of impotency. On that testimony the conclusion of alleged impotency must rest. It is true, there was testimony of a physician called as a witness by the defendant, and which w7e have set out in the statement, to the effect that, in his opinion, impotency was not a necessary result of the accident to plaintiff. But that physician, on redirect examination by counsel for defendant, testified that he did not consider himself competent to answer or to pass upon that fact. Even if this witness had not almost entirely destroyed the probative force of his testimony by this very frank admission, the fact of whether impotency had been proven was one for the determination of the jury, who were the judges of the weight to be given to the testimony concerning it. The jury had before it the declaration of this plaintiff as to — 150 — non-intercourse, and counsel for appellant argue and present this case on the theory that testimony of non-intercourse is evidence of impotency. His argument is that impotency is sought to he proven by the fact of non-intercourse, and that plaintiff, as husband, is disqualified from testifying as to the fact of non-intercourse, and as he is not shown to be an expert, he cannot testify as an expert. These are substantially his objections, made to the question as to non-intercourse when that question was asked plaintiff at the trial, and it is on these objections that his brief and argument before us rests. There was no contradiction of this bald and plain statement of a fact by plaintiff. The jury saw and heard the plaintiff and it was within their province to determine, on his testimony, whether the fact existed. The learned counsel for the appellant, however, very strenuously argues, that the court, in inserting in the instruction .which it did give on this subject, the words “and directly caused thereby,” was instructing without evidence on which to base this clause, contending that there was no evidence whatever in the case to show that the impotency complained of or injury to the organs was directly caused by the accident. Counsel presents a vast array of authorities in support of his position that it must appear that the accident directly caused the injury complained of. There is no doubt whatever that this is as thoroughly settled as any legal proposition can be said to be settled. The assumption, however, upon which the argument rests is erroneous. The testimony of plaintiff himself was that before this wreck, he was a perfect man in all respects; his testimony tended to prove that after that he had become impotent. The fact of the accident was beyond question. He was injured in the wreck. There is no pretense of any intervening or intermediate fact to which the change in his condition can be attributed. On these facts the jury had a right, as sensible men, as men of even ordinary intelligence, to form their own conclu — 151 — sions as to whether or not the alleged result was directly caused by the accident. Even assuming that the testimony of the physician, in the face of his own declaration of non-expertness on such matters, is to be taken as the testimony of an expert that impotency does not follow such injuries as were testified to as having been reeeiAred by plaintiff, and assuming, which was not true in this case, that witnesses of established reputation as experts on this branch of pathology had testified that impotency could not arise from or be directly caused by such injuries or from such an accident, we have in this case the express declaration of the court, given at the instance of defendant’s counsel himself in his third instruction: “You are instructed that the opinions of the physicians who have testified in this case are merely advisory, and not binding on you. You should accord to them such weight as you believe, from all the facts and circumstances in evidence, they are entitled to recede, and you are at liberty to disregard all or any part of their opinions which appear to you to be unreasonable.” So that under this, the jury has the undoubted right to determine as between the testimony of plaintiff and the theoretical, someA^hat mythical, testimony of experts. Our conclusion is that there was no error in giving this part of the instruction and in including impotency as an element of damage and it follows that there Avas no error in refusing instructions B and C asked by defendant, unless it is true that the fact of non-intercourse, on Avhich the presumption of impotency rests, cannot be proven by the testimony of the husband, he not being an expert, nor qualified as such, and being incompetent, as husband, from testifying to the fact of non-intercourse. Counsel for appellant has cited in support of his contention that error was committed in allowing plaintiff to testify as to non-intercourse, Am. and Eng. Ency. of Law (2 Ed.), vol. 3, p. 878, as also Dennison v. Page, 29 Pa. St. 420; Tioga County v. South Creek Township, 75 Pa. St. 433; — 152 — Shuman v. Shuman, 83 Wis. 250; Mink v. State, 60 Wis. 583; Bell v. Oklahoma, 8 Okla. 75; Chamberlain v. People, 23 N. Y. 85; Egbert v. Greenwalt, 44 Mich. 245; Boykin v. Boykin, 70 N. C. 262; Scanlon v. Walshe et al., 81 Md. 118; Bowles v. Bingham, 2 Munf. (Va.), 442; Corson v. Corson, 44 N. H. 587; Legge v. Edmonds, 25 L. J. Ch. (N. S.) 125. Referring to the encyclopedia, on the page given bv counsel, it will b5' found that the text relied upon is under the title, “Bastardy.” Most, if not all, of the cases which he cites, are cases of bastardy or cases between the husband and wife, in which it was held, as it undoubtedly has been held in like cases in our State, not only by decision, but by statute, in all cases where the question of competency of the witness is concerned, that the husband in such cases is not a competent witness as to transactions between himself and his wife. It is the shield thrown by the law around the relation of husband and wife, and in the cases referred to by counsel it was invoked either where the husband was suing the wife or vice versa, or in cases of bastardy, or where the question of the legitimacy of the children was in issue. On a careful examination of every one of these cases, we have come to the conclusion that they do not meet the issue and do not sustain the proposition made in this case by counsel. In Corson v. Corson, supra, cited by appellant, the ruling of the court, that the husband is not a competent witness to prove want of access, is distinctly limited to proof of want of access in a proceeding in a libel for divorce, although it is true that in that case authority is cited for the position that non-access cannot be proved by either husband or wife in any cause. This is followed, however, by the limitation, “whether to recover property as heir at law or in a bastardy or settlement case.” It would seem, therefore, that in all the cases in which this matter of testimony as to non-access has been passed upon, the legitimacy of children was — 153 — involved, or they were cases between husband and wife for. alleged unfaithfulness or inattention to marital obligations, or the like. This is no proceeding affecting the wife or in which she is involved with respect to the relations between her and her husband; no property rights of the husband and wife inter sese or as to their children are involved; no question of legitimacy or of inheritance of the children is involved, and no disclosure of the relationship of husband and wife, of such a character as renders it against public policy for either to testify, is presented by this case. We have been referred to no case in which the rule has been extended to cover cases such as the one at bar, where the husband, suing for damages, one of the elements of which was' alleged impotency, has been excluded from testifying as to a fact which is a very strong element in the establishment of impotency. It seems to us that the plaintiff was competent to testify as to the fact, “because of the necessity of the case.” Cramer v. Hunt, 154 Mo. 112, 1. c. 117 to 120. 1 Greenleaf Ev. (14 Ed.), sec. 348, is cited and quoted by Judge Burgess in support of the rule that the necessity of the case makes an exception to the rule itself. No human being but himself or his wife, could, in modesty or morals or in law, possibly know of the existence of the fact. The testimony of any other witness would be theoretical merely. Our conclusion is that there was no error in the admission of this testimony of the husband and that there was, therefore, no ■ error in the refusal of defendant’s instructions B and C, or of the embodying of the fourth clause of the instruction concerning the elements of damage which the court gave at the instance of plaintiff. The fifth point or proposition made by counsel is not tenable. The two physicians referred to show by the examination to which they were subjected that they were fairly competent to testify as experts on the line upon which their evidence was sought. — 154 — The sixth point made as to the error of the court in excluding the depositions of Dr. Phelps and Dr. Christie, who were present assisting Dr. Elston in the examination and treatment of plaintiff while in the hospital, in our opinion, is not tenable. It appears that plaintiff objected to these parties as witnesses on the ground that they were his physicians and therefore, without his consent, not competent witnesses as to what had taken place. Our statute (sec. 4659, R. S. 1899) holds a physician or surgeon disqualified and incompetent to testify “concerning any information which he may have acquired from any patient while attending him in a professional character and which information was necessary to.enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.” Counsel for plaintiff argue that the evidence which it was proposed to elicit from these two witnesses, is not set out and that it cannot be determined whether it was relevant or not. But it appears from the abstract of the record furnished by appellant, that the depositions of each of these witnesses was offered to be read, but excluded, save a sentence or two from that of Dr. Phelps which was read in evidence. The substance of the depositions was very properly inserted in the record and they are before us. It is argued that the testimony in them is merely cumulative of the testimony already in, and thát no reversible error was made in excluding them. We cannot agree to this. The depositions disclose that the testimony offered bore directly on the condition and symptoms and acts of the plaintiff at the hospital as the writn esses saw them, and the testimony of these surgeons bore directly on what they had observed and the conclusions they had arrived at, from insj>ection of and conversation with the plaintiff. It cannot be said that this testimony was immaterial. Nor can we assent to the proposition that it was merely cumulative, or that it was proper to exclude it because merely cumulative. It was more than that. It was — 155 — independent testimony, in corroboration of defendant’s theory that the injuries to plaintiff were not of the serious nature claimed. A party has a right to have all the witnesses heard who have knowledge of facts and circumstances bearing on the case. Limitation of the number of what are called “character witnesses,” is an exception to this rule. Possibly there are other exceptions. But this is within the rule. Therefore the exclusion of these depositions must rest solely on the question of whether the Avitnesses come within the statute quoted as excluding physicians and surgeons from testifying and whether the privilege of exclusion, vested in plaintiff, has been waived. Cramer v. Hunt, supra, is one among the many cases in which our Supreme Court has held that waiver of the privilege of exclusion rests on the patient alone. It seems to be conceded in this case that Dr. Elston was plaintiff’s attending surgeon and that Doctors Phelps and Christie assisted him; that they were in attendance on plaintiff in that capacity. There is nothing in the records to show that the relation of surgeon and patient did not exist betAveen them and plaintiff, as fully as between him and Dr. Elston. [Wertz v. Mound City Railway Co., 58 Mo. App. 39, 1. c. 44.] So that unless it be that by testifying as to the injuries and treatment himself and Avaiving the privilege as to Dr. Elston, plaintiff must be held to have Avaived it as to these two surgeons, there is no force in the point made by plaintiff. We are referred to Webb v. Met. Street Railway Co., 89 Mo. App. 604, a decision by the Kansas City Court of Appeals, and to Highfill v. Mo. Pac. Railway Co., 93 Mo. App. 219, a decision by the same court following it, as holding that by going into detail showing that he had been treated by certain doctors at certain times for certain disorders, plaintiff had thrown down the bars and forfeited his right of exclusion of the testimony of the physicians who attended him. We cannot, — 156 — after careful consideration of that case and opinion and of the cases referred to therein, agree to this. If by testifying to his injuries and what was done and said by his attendant physicians, the patient threw down the bars, then our statute is abrogated. Nor do we interpret the decision of Mellor v. Railway, 105 Mo. 455, as sanctioning any such rule. In this latter case, Judge Thomas for the court in banc, adopting the opinion of Judge Barclay given in Division No. 1, at page 461, distinctly held that by calling one physician to testify the plaintiff: had not waived his right to claim privilege as to others. The case at bar is much stronger than that, for Dr. Elston was not called by plaintiff. He, plaintiff, merely failed to invoke his privilege against Dr. Elston testifying. Furthermore, as we understand the decision of our Supreme Court in Holloway v. Kansas City, 184 Mo. 19, plaintiff by testifying to his injuries and treatment and by failing to assert his privilege as against the testimony of Dr. Elston, a witness called by the defendant, .did not waive his privilege to object to the testimony of Doctors Phelps and Christie. The final point made by counsel for appellant is on the exclusion of evidence of certain statements made by a physician to the plaintiff as to the extent of his injuries. The point of this objection seems to be, that when the deposition Avas taken, no such objection was made. This assignment is not tenable. [R. S. 1899, sec. 2908.] Finding no reversible error we think the judgment-should be affirmed, but as our decision, on the point indicated, is in conflict with that of the Honorable' the Kansas City Court of Appeals in the two cases cited, Ave certify the case to the Supreme Court.