Kling v. City of Kansas

27 Mo. App. 231, 1887 Mo. App. LEXIS 24

• Court: Missouri Court of Appeals
• Decided: February 8, 1887
• Status: Published

Opinion

I.

Hall,. J.

Was the physician competent to testify to the condition, as regards sobriety, in which he found the plaintiff when he. called upon the latter as his physician ?

Our statute upon this subject, Revised Statutes, section 4017, is as follows: “The following persons shall be incompetent to testify: * * * fifth, a physician or surgeon, 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.” These provisions of the statute are based upon that principle of public policy which lies at the foundation of the common-law rule that excludes, as privileged, professional communications made by a client to his attorney. Our statute, and similar statutes of other states, have been construed in the light of the reason for their enactment. Thus, although our statute speaks only of information acquired from the patient, the statute has been held to include within its meaning information acquired from an examination of the patient, as well as information orally communicated by the patient. Gartside v. Ins. Co., 76 Mo. 446, and cases cited. And, although no exception is made by the statute, still the statute has been held to create a privilege in favor of the patient, for his protection, which he may waive. Groll v. Tower, 85 Mo. 249, and cases cited. The meaning of the New York statute and of our statute, on this subject, has been said tobe “ the same when construed with reference to the' object to be brought about.” Gartside v. Ins. Co., supra. In speaking of the New York statute, the court of appeals of that state has said: “Its object is a beneficent one; it rests on obvious principles of convenience and policy; and it should be so construed as to carry out that object effectually, and, so far as the language will admit, as to reach and defeat all attempts to do, in an indirect or circuitous manner, that which it has prohibited.” Grattan v. Ins. Co., 80 N. Y. 297. And we-have held that the statute should be so construed as to defeat any attempt to indirectly and circuitously prove by the physician that which the statute has prohibited from being proved by the physician. Streeter v. City of Breckenridge, 23 Mo. App. 244.

Information as to the plaintiff’s condition as to sobriety at the time the physician called on him was, as the physician testified, and is self-evident, not necessary to enable the physician to treat the patient for the injuries received by the latter. The question is thus presented, what is meant by the phrase in the statute, “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?” What information is “necessary information” within the meaning of the statute ? Revised Statutes, section 4017, also provides: “The following persons shall be incompetent to testify: * * * third, an attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client.” The common-law rule with reference to professional communications, made by a client to his attorney, is recognized by direct enactment, and the information given by the patient to his physician is placed by the statute upon an equal footing with the said communications. It is true that the information is by the ¡statute limited to information which was necessary to enable the physician to act professionally, while no such limitation is fixed by the statute in relation to the communications made by a client to his attorney. But the protection of the statute is limited to such communications as shall be made by the client to his attorney in that relation. And it must not be forgotten that, although, as to the communications made to an attorney, the attorney is, by express provision of the statute, permitted to testify, with the consent of his client, and that as to the information acquired by the physician, no such privilege in favor of the patient is made by the words of the statute, our Supreme Court has held, in order to effect the object of the statute, that the patient has the like privilege with the client, and may remove the seal of secresy from the lips of the physician by consenting that the physician may testify to the information excluded by the statute. If, therefore, it should be necessary, in order to effect the clear and evident intention and object of the statute, to give the same construction to the limitation in relation to the communication made by the client to his attorney, and the limitation in relation to the information acquired by the physician from his patient, we should not hesitate to do so, although the same words were not used in establishing the two limitations. As to the communications made by a client to his attorney the statute has simply reenacted the rule of the common law in relation to such communications, as that rule has been declared and applied in the leading and best considered cases on the subject. The common-law rule was by some of the courts liberally construed, ,and was strictly construed by other courts. The liberal construction is the prevailing construction and the one supported by the best considered cases. The statute so declares the common-law rule as to clearly enforce in this state the liberal construction of that rule, but, as we shall see, the statute has not enlarged the common-law rule beyond the liberal construction thereof placed upon it by the courts. The restrictions placed upon the common-law rule under the prevailing liberal construction of it, have not been removed by the statute, but they still exist and form a part of the statute under a proper construction thereof, a construction made to effect, and not to defeat, the object of the statute.

Under the liberal construction of the common-law rule, that rule applied to all cases where a communication was made to an attorney or other legal adviser in his professional capacity. 1 Phil, on Evid. 142. Under the liberal construction of the rule, the rule was not confined to cases in which an action was pending or was contemplated. And such is clearly the rule as declared by the statute. But under the liberal construction of the common-law rule the privileged communications were restricted to such Communications as were made by the client to his attorney for the purpose of obtaining professional advice or assistance on the subject of his rights and liabilities. Communication to an attorney, as a friend, were not privileged; nor were communications by a client to his attorney privileged, unless the latter was acting as such in the matter to which the communications related. 1 Phil, on Evid., p. 142, note 68. And such is the rule as declared by the statute. Under the statute a communication must be made to the attorney “by his client in that relation;” and the words, “in that relation,” clearly mean that the communication should be made to the attorney as such, and in order to obtain the advice or assistance of the attorney concerning the matter in relation to which the communication may be made. In treating of the common-law rule it has been said: “The privilege does not attach to everything which the client says to his attorney; the test is whether the communication is necessary for the purpose of carrying on the proceeding in which the attorney is employed; if it is necessary, it becomes privileged.” 1 Phil, on Evid., 142. This same test might, we think, be laid down as the test by which to determine whether a communication is privileged under the statute. It seems clear to us that any information orally communicated by a patient to his physician, which, although unimportant in itself, is necessarily communicated in order to give to the physician the information needed by him in order to act professionally, is “necessary information,” within the meaning of the statute. It is true, that according to the strict letter of the statute, no such distinction is made, and only information ■is excluded which was necessary to enable the physician to act professionally, and unimportant information is not excluded, although necessarily communicated to the .physician. But the object of the statute is so clearly to protect all information necessarily communicated to the .physician in order to obtain his professional assistance, that it is not doing violence to the language of the statute to hold that any information necessarily communicated to the physician for that purpose, is “necessary information,” within the meaning of the statute.

If the physician, as a physician, called for and obtained from the patient unimportant information, but which the patient communicated to the physician, as his physician, surely that information would be privileged. Having called for the information as important, the physician would not be permitted to disclose it as unimportant. If the patient, suffering from a gun-shot wound, necessarily communicate the information to the physician that the wound was received in a personal encounter, in order to explain the probable course of the ball, information of which latter fact is needed or desired by the physician, information of the fact that the1 patient was wounded in a personal encounter, although that fact is unimportant, would be privileged. If a patient suffering from a broken leg, in explaining to his physician the manner in which he received the injury, in order to give needed information concerning the injury, communicate to the physician information that he was under the influence of intoxicating drink at the time of the accident, such information would be excluded. Our conclusion is, that any information necessarily acquired by the physician from the patient, in order to-treat him while attending him in a professional capacity is excluded by the statute.

What we have just said, concerning information orally communicated by a patient to his physician, applies with like effect to information acquired by the physician from seeing and examining the patient, because, as we have seen, the statute has placed information acquired in both ways upon the same footing. And! this was also the case under the common-law rule concerning communications made by a client to his attorney. Lord Ellenborough said, “one sense is privileged as-well, as another. He cannot be said to be privileged as-to what he hears, but not as to what he sees, where the knowledge acquired as to both has been from his situation as an attorney.” Robson v. Kemp, 5 Esp. 52. And it has been said on the same subject: “We believe this to be the better opinion. The situation and contents of a paper delivered to an attorney for inspection, in the course of employment as an attorney, is as much a matter of professional confidence as an oral statement of its contents or condition can be.” Brown v. Payson, 6 N. H. 447.

If a patient be injured in such a manner as to render it necessary for him to so expose his person, in order to enable the physician to treat the injury, as to disclose to the physician a hidden defect in his person, or a concealed and degrading mark on his person, rendering him, if known, an object of contempt or infamy, although such fact may be unimportant in a professional sense, information of such fact thus acquired by the physician would be excluded under the statute. And it is plain that any information acquired by the physician, concerning the condition of the patient, from seeing him while attending him professionally is excluded fcy the statute, unless there is a distinction between external signs connected with the patient, which all may see, and hidden or secret signs which the physician, as such, can alone see. This distinction has been made in Linz v. Insurance Company (8 Mo. App. 369). The court said: “ Thus, objective signs which are obvious on such an observation as implies no disclosure, symptoms which are apparent before the patient submits himself to any examination, the statute gives no authority for excluding. That a patient had an inflamed face, a blood-shot eye; that fumes of alcohol proceeded from his person; that he talked deliriously, could be excluded only on the basis that' the statute forbids a physician to be a witness. These objective signs, and others which imply no knowledge obtained as the result of submission or exposure by the patient, and which would be apparent before the initial act of service on the physician’s part, the latter should testify to under our statute.” “The key to our statute,” the court said, “is submission or disclosure on the part of the patient.” And the court added: “Where the facts sought to be elicited are such, and so superficially apparent that in regard to them no confidence could have been reposed, the basis of exclusion does not exist.” The court so held on the authority of an opinion by Earl, J., in Edington v. Insurance Company (77 N. Y. 564). The distinction is founded upon the idea that the statute is based upon confidence reposed in the physician by the patient. And hence it was held that information of a fact, apparent to every one at mere casual sight, could not be considered imparted in confidence to the physician. This distinction finds no support in the words of the statute. As plainly said, in express words, by Earl, J., the distinction made by him excludes from the operation of the statute information included within its letter, but which, as the learned judge held, is not included within its spirit. In Edington v. Insurance Company (supra), only three other members of the court sat with Earl, J., and they concurred only in the result reached by him in his opinion as to the subject under discussion. In the subsequent case of Grattan v. Insurance Company (80 N. Y. 281), decided by a full bench, and in the opinion in which case all the judges fully concurred except Earl, J., who dissented, the basis on which the distinction was placed by Earl, J.', was not recognized. The court said, in speaking of the information obtained by a physician from his patient: “ The information so obtained must remain enclosed with him, for he is forbidden to disclose it. The word must be taken in its fullest sense. He must not tell it — not because a patient declared the communication to be confidential, or because the physician considered it so, but because the statute says that the communication to him shall not be by him disclosed or told. Any other rule will annul the statute, and permit it to be evaded. * * * The court need lay down no rule; the statute is the rule, and we are merely to inquire whether the case comes within it.” The basis for the distinction has thus been denied in New York, and, of course, the distinction in that state has no longer an existence.

We have seen that the distinction, admittedly, has no support from the words of the statute. Neither is it supported by the spirit of the statute. This same distinction was attempted in the application of the common-law rule concerning communications made by a client to his attorney in cases where the information was obtained by the attorney by his sense of sight. The distinction was thus stated: ‘ ‘ An attorney may be examined as to a fact of his own knowledge, and of which he might have had knowledge, without being counsel or attorney in the cause.” Bull, N. P., 884. But against the distinction it has been held that an attorney may not be called to state facts of which he might by possibility have acquired knowledge without being counsel or attorney in the cause, but of which he actually had knowledge from professional confidence. Brown v. Payson, supra. And the latter position recommends itself to our consideration and approval, as being more in accord with the policy upon which the common-law rule and our statute are based. The test is, how was the information acquired; it matters not that it could have been acquired in a different way. In our opinion the distinction is supported by neither the spirit nor the letter of the statute, and is not real. The physician called upon the plaintiff as his physician; any information as to the plaintiff’s condition as to sobriety, acquired by the physician by seeing him, was necessarily acquired in order to treat him, and is excluded by .the statute. The indications that the plaintiff had been drinking, and was under the influence of liquor, were, in part, the appearance of the plaintiff, as stated by the physician. The court properly struck the questions and answers from the deposition.

Two other questions, and the answers thereto, were struck from the same deposition by the court. The action of the court in respect thereto is not urged as error in the defendant’s brief, and we, therefore, say nothing in relation thereto.

II.

Objection is made by the defendant to that part of instruction numbered one given for the plaintiff in italics, which declared that it was the duty of defendant to make and keep the sidewalk, where the plaintiff was injured, reasonably safe for travel. The defendant takes the position that whether such duty devolved upon it was not a question of law, but was a question of fact for the jury, under proper instructions. This position is based by the defendant upon the principle, long recognized by our Supreme Court, that a municipal corporation is not required to keep all of its streets, or the whole of any one street, in a proper condition for travel. Bassett v. St. Joseph, 53 Mo. 290; Brown v. Mayor, 57 Mo. 156; Craig v. Sedalia, 63 Mo. 417. And the more recent application of the principle to the case of a sidewalk. Tritz v. Kansas City, 84 Mo. 642. The instruction asserts nothing contrary to that principle. The instruction does not declare that it was the duty of defendant to keep the sidewalk in repair for its entire width; from the instruction no such inference can be drawn. The instruction simply declares that it was the duty of defendant to keep the sidewalk are sonably safe for travel.

The principle sought to be enforced by the defendant was first recognized in this state in the case of Bassett v. St. Joseph (supra). And in that case it was also said, in the closing sentence of the paragraph in which the said principle was laid down: ‘ ‘ When a street is opened for use it should be put in a reasonably safe condition.” The principle relied on by defendant was recognized and applied in the case of Heckler v. St. Louis (13 Mo. App. ). But the court also said, on page 280: “ When a located street is prepared for travel, and thrown open to public use by the municipal authorities, this admits the fulfilment of all preliminary conditions. It assumes, on the part of the authorities, the duty of keeping the highway, thenceforth, in suitable repair, and invites the public to travel upon it, under an implied assurance that they may do so with safety. There can be no .mistake, then, about the duty of the corporation, or its liability to one who may be damaged by an obstruction or defect not in consonance with the faithful performance of such duty.” It may well be doubted whether the principle relied upon by the defendant has any application to a street which has been opened by a city to public travel for its entire width, so long as it remains thus open to travel. But we are not called upon to decide this question, for the reason, as said before, the instruction complained of is not open to the objection made.

Only a few excerpts from the evidence have been presented in the abstracts of the record furnished us. As we have often said, under rule fifteen of this court, the abstracts of the record, except in cases of dispute between the appellant and respondent, are treated by us as the record; we do not go to the record to ascertain the facts. Every intendment must be made by us in favor of the action of the trial court in giving the instruction referred to. Had the street, on which the sidewalk was, been opened by the city to public use for that portion of the street, including the sidewalk, the instruction properly declared that it was the duty of the city to keep the sidewalk reasonably safe for travel. In the absence of anything in the abstracts of the record indicating the contrary, we shall assume that the evidence showed that such was the fact.

III.

Instruction numbered one, asked by the defendant, was properly refused. So much, of said instruction as was proper was included in other instructions given by the court. The failure of the plaintiff to select another route, under the facts of this case, did not constitute contributory negligence per se on his part. Beaudean v. Cape Girardeau, 71 Mo. 397; Smith v. St. Joseph, 45 Mo. 449; City of Montgomery v. Wright, 72 Ala. 411.

17.

The refusal of the second instruction asked by.the defendant was not error. There was no issue as to the effect of the failure of the defendant to keep its streetlamps lighted at the place of the accident. The refusal of the instruction was not equivalent to the assertion of the contrary proposition of law. Dempsey v. Reinsedler, 22 Mo. App. 43; Mills v. Davis, 19 Mo. 408.

The case was fairly tried. The judgment is affirmed. But as in my judgment the first division of this opinion is in conflict with Linz v. Ins. Co. (8 Mo. App. 369), the cause will be certified to the Supreme Court.

Ellison, J., concurs. Philips, P. J., concurs in affirming the judgment;

but non-concurs in the order certifying the cause to the Supreme Court, for-the reason stated by him In re Estate of Elliott v. Wilson (ante, p. 218), this day certified by a majority of the court to the Supreme Court.