Barbour v. Martin

62 Me. 536

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1873
• Status: Published

Opinion

Danforts, J.

From the exceptions in this case, it appears that one of the causes of complaint against the defendant, is an alleged abandonment of his patient without notice, while the attention of a physician was still necessary. It does not appear that he undertook to attend through the sickness, or for any specified time. It may be conceded then, that he might leave his patient at any time he might choose to do so, that choice being governed by the circumstances of the case, and exercised in a reasonable manner. "When a physician is called to a patient and attends, nothing being said as to the time, it would certainly be a dereliction of duty to leave that patient in the midst of a critical sickness without cause, or without sufficient notice to enable the party to procure other suitable medical attendance. Hence it became a matter of some importance, to ascertain whether the plaintiff’s intestate had knowledge of the defendant’s absence from town. "With this view a witness is asked what she (the deceased,) said about the defendant at a time named, and whether anything was said about his being away. The answer to the first question, that she had rather have Dr. Martin, for she had had him once, taken in connection with the fact that her husband was about going for him, would imply, perhaps, a hope that she might obtain his attendance, but certainly a doubt as to whether she should succeed. From this doubt, the jury might well infer a knowledge of his absence, as also from the remark that she had once had him, that any prior engagement had been rescinded, and from the second answer, that nothing was said about his being away, that she had no complaint to make of that condition of things. It cannot be said then, that the testimony was immaterial. The remaining part of the conversation, as testified to, by the husband, very materially modifies what had been previously said, or unsaid. The plaintiff was therefore entitled to it, even though it might be proved by another witness. The fact that one witness may not have heard all the conversation, or may have forgotten a portion of what he did hear, does not deprive the party of his right to the whole, if the whole can be proved. "When a part or all of a conversation has been proved, we are not aware of any principle of law that will prevent any number of witnesses who may have heard it, from giving each his own recollection of it. It is sufficient that it is the same conversation, and relates to the same subject matter.

It is undoubtedly true, as contended in the argument, that when the admissibility of evidence depends upon the decision of some preliminary fact by the presiding judge, his finding is conclusive. But how does that affect this case ? It does not appear from the exceptions that any such decision-was made. On the other hand, it was expressly stated, that any conversation in the absence of Mrs. Graffam would be excluded. The only inference which we can draw from this is, that the exclusion was not on the ground that it was a different conversation, or related to another subject, but because Mrs. Graffam did not hear, and could not testify to it; which, as we have already seen, was an incorrect ruling.

Exceptions sustained.

Appleton, C. J., Walton, Dickerson, Barrows and Yirgin, JJ., concurred.