Reid v. Yellow Cab Co.

279 P. 635, 131 Or. 27, 67 A.L.R. 1, 1929 Ore. LEXIS 252

• Court: Oregon Supreme Court
• Decided: April 17, 1929
• Status: Published

Opinions

COSHOW, C. J.

It was error for the court to admit the testimony regarding past events of the witness Dr. Alan W. Smith, consulted by plaintiff for the express purpose of qualifying himself to testify. Dr. Smith never treated plaintiff. There were two trials in the case and just before the first trial he was consulted by plaintiff at the request of her attorneys for the express purpose of qualifying him to testify. At the second trial he was again consulted for the same purpose. I think that his testimony wherein he was permitted to relate what the witness told him about how the accident occurred, about her past suffering and nervousness, was clearly incompetent. The majority of jurisdictions exclude what the plaintiff tells a physician under such circumstances as to the plaintiff’s present condition where the doctor is not called by the plaintiff to be treated. The better rule is stated in 22 C. J., pp. 268 and 269:

“Narrative statements to a physician are to be rejected where they relate to facts not connected with diagnosis and. treatment, such as the cause of an illness or injury, the circumstances under which an injury was received, or the instrument with which it was inflicted, or past sufferings of the patient. But where a statement to a physician, although narrative in character, relates to a matter which it is necessary or proper for him to know in order that he may accurately diagnose and properly treat the case, it may be shown. ’ ’

“So, in Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452 (38 Atl. 683), it was said that where declarations were made to a physician, not for the purpose of treatment, but to lead the physician or surgeon to form an opinion to which he might testify as a witness for the declarant, not only was the reason for credibility absent which would have been present had the patient applied for treatment, but instead, self-interest became ‘a motive for distortion, exaggeration and falsehood. Hence, it is the better conclusion that declarations made under such circumstances are not competent evidence on behalf of the declarant’ Note to Shaughnessy v. Holt, (236 Ill. 485, 86 N. B. 256), 21 L. R. A. (N. S.) 826.

“It is plain that the statement by a party to a cause of his bodily and nervous symptoms made long after the occurrence of the accident to which he attributes them and for purposes connected with the preparation for trial of a suit in which his condition of health is material, and not made to a physician for the purpose of obtaining advice or treatment are not admissible in evidence in his own favor as proof of the truth of the matters stated”: Cronin v. Fitchburg, 181 Mass. 202, 203 (63 N. E. 335, 92 Am. St. Rep. 408).

“If the statements were made to a. physician not in attendance on the patient, but for the purpose of preparing him to testify, an opinion based thereon is not admissible, though an opinion based on an examination of the plaintiff during the trial, at the defendant’s request, has been accepted, with a suggestion that the general rule of exclusion would have applied if the examination had been by the plaintiff’s own witness alone, in preparation for trial”: 11 R. C. L. 613,§ 35.

“Statements of past sufferings, pain, or symptoms are not excluded by the necessity principle, for the necessity is equally the same for all internal conditions, whether past or present. They are, however, excluded by the principle of Guarantee of Trustworthiness (ante, §1718), for they are not naturally caused by the existing pain or other symptoms, but, being deliberate accounts of past occurrences, are no better than statements of any other past events. They are, therefore, generally excluded. * * *

“There is in Massachusetts (and a few other jurisdictions) a modification of the preceding rule where the statements are made to a physician. Statements of past facts in the shape of the circumstances of the injury are, as elsewhere, ALWAYS REJECTED; but statements of past suffering and other symptoms in preceding stages of the illness are admitted when made to a physician. * * *. This modification (of the hearsay rule) extends only to past sufferings and symptoms, and does not include the past external events attending the injury or illness”: 3 Wigmore on Evidence, 2216, 2217, § 1722.

The authority to support the text cited by the erudite author is Roosa v. Loan Co., 132 Mass. 439. The physician testifying in that case was treating the party. A different rule governs that kind of a case from the rule controlling the instant case. The difference in the rulings of the various jurisdictions is whether a physician called by the plaintiff for the express purpose of qualifying himself to testify might repeat what plaintiff said to him regarding his suffering and nature of his injury. We think the better rule, as announced by the majority of cases, excludes statements made by the plaintiff regarding his past suffering. There is no authority that I have been able to find which admits statements made by plaintiff to a physician regarding the cause of the injury or the manner in which it was received or other details regarding the event in which plaintiff claims to have received the injury. The statement to Dr. Smith that she had been nervous was harmless because the doctor found from his examination, and so testified, that plaintiff was nervous. He explained in detail the tests he made in order to testify to that effect.

The objection made by defendant to the repetition by Dr. Smith of plaintiff’s narration to him of the manner in which she received the injury, the cause of her injury and the nature of her suffering should have been sustained. But the evidence is probably harmless because the plaintiff herself testified directly to these injuries and to the other facts repeated by her to her witness Dr. Smith. There seems to have been no dispute as to the manner the injuries were received. The testimony of Dr. Smith might have been very damaging under some conditions and should have been excluded. A physician might be permitted under some circumstances, even where he is called by the plaintiff for the express purpose of testifying, to relate what plaintiff said about her suffering at that particular time but not her past suffering, and such should be admitted with great caution. A large discre tion should be left to the trial judge, who should exercise great care to prevent as far as possible plaintiff’s support of his case by what he has told a physician. Such statements are not made under oath, are self-serving and should be received with great caution.

The instruction on necessity of proving permanency of injury in order to justify including damages for future suffering in the verdict was correctly stated by the learned trial judge. He charged the jury in part:

“You are not to indulge in the realm of possibilities as to her injuries, but the probability of future suffering, proved by a preponderance of the evidence in the ease, may be taken into consideration. Not the possible injuries, but what the evidence shows the probable injuries to be, if the injuries are to be permanent. The evidence must show that they are permanent.”

The instruction sufficiently covered the instruction requested by defendant: Barron v. Duke, 120 Or. 181, 194 (250 Pac. 628).

The testimony of Dr. Smith in the instant case is not harmful. The judgment is affirmed.

McBride, J., concurs.

Aeeirmed. Rehearing Denied.

Objections to Cost Bill Overruled.