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Mo.)

MICHAELS V. HARVEY

735

care was observed, the running of the cared to examine and treat her on the second day must be viewed in the light of the "exigencies after her injury to testify fully as to the condiof the situation.” Haake v. Davis, 166 Mo. tions which might be attributed to the injury,

and who, on the day before, had allowed a pracApp. 249, 148 S. W. 450.

ticing physician brought by a friend who was en[9] It is unnecessary to notice the other gaged in following injury suits, to make an exquestions relating to whether the car actual- amination of her as a patient, and to whom ly struck plaintiff or not, whether her alleg- she disclosed all the secrets as to the conseed injuries were simulated, or whether, if to exclude the latter's testimony as a privileged

quences of her injury, thereby waived her right real, they arose from another cause. Clear-communication to a physician, within Rev. St. ly they are questions to be settled by a jury. 1909, $ 6362. The fact that plaintiff may have said at the

[Ed. Note.-For other cases, see Witnesses, time that she was not hurt, and later told Cent. Dig. SS 769, 781, 782;' Dec. Dig.

219.] defendant that she had no grievance against him, is not conclusive against her. She did 5. WITNESSES Ow208–PRIVILEGED COMMUNI

CATION-PHYSICIAN. not in express terms deny that she said these

In an action for personal injury from a things, but she testified that the automobile collision with defendant's street car, the refusal struck and injured her, which was, in effect, to allow the regular physician of the defendant, a denial of the charge that she had no claim not employed by plaintiff, but who was allowed

to make an examination of her injury in an atagainst defendant. The fact that she may tempt to settle her claim, to disclose his knowlhave said these things is no more than a edge of her injury so obtained, was proper; as circumstance to be considered by the jury in to permit him to disclose such knowledge would

violate the rules designed to encourage the comweighing her case. Inasmuch as defendant's contention that promise of disputed claims and their settlement

. plaintiff cannot be allowed to recover in any [Ed. Note.--For other cases, see Witnesses, event is untenable, the action of the trial Cent. Dig. 88 768–770, 777; Dec. Dig. Om 208.) court in granting her a new trial for error committed against her and in defendant's fa

Appeal from Circuit Court, Jackson Counvor is affirmed. All concur.

ty; W. 0. Thomas, Judge.

Action by Mary E. Herman Michaels against Ford F. Harvey and another, receiv

ers of the Metropolitan Street Railway ComMICHAELS v. HARVEY et al. (No. 11597.) pany. Judgment for plaintiff, and defendants (Kansas City Court of Appeals. Missouri. Oct. appeal. Reversed and remanded. 4, 1915.)

John H. Lucas, of Kansas City, for appel1. STREET RAILROADS Ow117-PERSONAL IN

JURY - QUESTION FOR JURY - LAST CLEAR lants. Piatt & Marks, of Kansas City, for CHANCE.

respondent. In an action for damages for personal injury sustained in a collision between plaintiff's wagon and defendant's street car, evidence held

JOHNSON, J. Plaintiffs sued the receivto make defendant's negligence under the last ers of the Metropolitan Street Railway Comclear chance rule a question for the jury. pany to recover damages for personal inju

[Ed. Note.-For other cases, see Street Rail-ries she sustained in a collision between a roads, Cent. Dig. 88 239-257; Dec. Dig. Om wagon in which she was riding and an elec117.]

tric street car operated by defendants on 2. STREET RAILROADS Om 103-PERSONAL IN- Walnut street between Fourth and Fifth JURY-NEGLIGENCE-LAST CLEAR CIIANCE.

In such action, the fact that plaintiff com- streets in Kansas City. The petition alleges mitted an error of judgment prompted by fear that negligence in the operation of the car of imminent injury did not absolve defendant's was the proximate cause of the injury, and motorman, who should have realized her peril specifies both negligence to which contribuin the exercise of his duty under the humanitarian rule of exercising reasonable care to avoid tory negligence would be a defense (i. e., injury, as it then became his duty to make the running the car at excessive speed and failing saving effort regardless of whether she had been to give warning of the approach of the car), negligent in becoming imperiled or had acted and negligence under the humanitarian rule; with the best judgment in trying to escape.

[Ed. Note. For other cases, see Street Rail- but the only issues submitted to the jury roads, Cent. Dig. $ 219; Dec. Dig. Om 103.]

related to the latter specification, and there 3. EVIDENCE 506-FACT OR CONCLUSION

is no evidence in the record tending to show PROVINCE OF JURY.

excessive speed, or that the failure to give In an action against a street railroad for warning (if none was given) was the proxipersonal injury from a collision, an offer of the mate cause of the injury. The trial resulted facts which an expert medical witness had discovered on his examination, and his admissible in a verdict and judgment for plaintiff in the opinions as an expert, was not objectionable as sum of $3,650, and defendants appealed. invading the province of the jury.

The injury occurred in the morning of [Ed. Note. For other cases, see Evidence, April 11, 1912, at a point on Walnut street Cent. Dig. 8 2309; Dec. Dig. Om 506.]

opposite the city market house and south of 4. WITNESSES C219-PRIVILEGED COMMUNI-Fourth street. Plaintiff, who was 18 years CATION-PHYSICIAN-WAIVER.

Plaintiff in an action against a street railold, and her mother, were driving south on road for personal injury from a collision, who in- Walnut street in a one-horse market wagon. troduced her family physician who had been call- | Plaintiff was seated on the right side doing the driving. The horse was large and heavy, following cases as authority sustaining the weighing 1,700 or 1,800 pounds, and the load contention that, since plaintiff obviously was in the wagon consisted of only 6 or 8 empty aware of the approach of the car, the motorlettuce boxes. The distance between the car man was not bound to anticipate that she track and the west curb line approximately would drive on and collide with the car, and was 30 feet, but many market wagons with that the same obligation rested upon her as their teams attached were backed up to the upon the motorman to avoid the collision, curb, and the clear space between the horses which she could have avoided by stopping her heads and passing cars was about 8 feet. horse. Kinlen v. Railway, 216 Mo. 145, 115 S. There was a row of commission and produce W. 523; Pope v. Railroad, 242 Mo. 232, 146 houses on the east side of the street, and the S. W. 790; Hebeler v. Railway, 132 Mo. App. clear space on that side between the car 551, 112 S. W. 34; Barnard v. Railway, 137 track and standing teams was less. The Mo. App. 684, 119 S. W. 458. If this were a street at that time and place was the scene case where it was apparent to the motorman of great activity, and the portion occupied by that the driver of a vehicle approaching on the car track was required and much used as the track not only was aware of the presence a passageway by vehicles of all sorts. Plain of the car he was meeting, but was in a positiff drove her horse in an ordinary walk, tion to avoid a collision by driving from the and, after passing Fourth street, was com- track, he would apply the principle of the pelled to turn onto the track to pass around cited cases and hold that the motorman was an automobile which blocked the passageway under no duty to anticipate that such driver, on the west side. Passing this obstruction, either willfully or negligently, would remain she attempted to drive from the track back upon the track until his position of safety into this passageway, but there was a groove had merged into one of danger, but this is or flangeway in the rail into which the left not that kind of case. Here the plaintiff disfront wheel dropped (the tires of the wagon closed knowledge of the danger and was try. wheels being only an inch and a quarter ing energetically and even frantically to eswide), and, instead of the wheel crossing the cape at a time when the motorman, if he had rail, it remained in the groove and slid along been looking, would have discovered she was the rail. Forty or 50 feet south of the auto- in a dangerous trap, from which she could mobile a large transfer wagon was being not extricate herself and by the exercise of backed across the track to the west curb, ordinary care could have saved her by stopand just behind that wagon was a north- ping the car. There is abundant room in the bound street car which advanced at a speed evidence for the inference that she could not of 5 or 6 miles per hour as soon as the track have saved herself by stopping the wagon, was clear.

and it is apparent she pursued the only sensi[1] Plaintiff and her mother state they ble course open to her, since she could not saw the car when the transfer wagon backed turn to the left for lack of room, and her out of the way, and, observing that it was only chance to escape was by turning the approaching, both screamed in fright, and horse to the right as far as she could, to pull plaintiff tried to turn her horse far enough the wheel out of the groove and over the rail, towards the west to pull the wheel out of the if possible. groove, but lack of sufficient space caused [2] But if, in this attempt which was this effort to fail. The predicament the wo- prompted by fear of imminent injury, she commen were in was observed by eyewitnesses mitted an error of judgment, this did not and should have been plainly apparent to the absolve the motorman, who should have realmotorman when the car was 35 or 40 feet ized her peril, from the duty, under the hufrom the horse. There is evidence that he manitarian rule, of exercising reasonable care was not looking and made no effort to stop to avoid running her down and injuring her. or reduce speed until the car collided with Her evidence depicts her as being in obvious the horse and wagon, and that the car push- danger from which she could not save herself ed them back a distance of 28 feet before it and the motorman as having a fair opporwas stopped. There is proof that, under the tunity to save her by the exercise of reasonconditions disclosed by the evidence of plain- able care. In such circumstances, it became tiff, the motorman had abundant time to his duty to make the saving effort regardless avoid the collision by stopping the car after of whether or not she had been negligent in he should have discovered the perilous situa- becoming imperiled, or was acting with the tion of the two women. The wagon was over- best judgment in trying to escape. For a turned, and plaintiff was thrown to the cob- negligent breach of such duty towards plainblestone pavement and injured.

tiff defendants would be liable for the reThese are the principal facts disclosed by sultant damages. The demurrer to the evithe evidence of plaintiff, and we think they dence properly was overruled. warranted the trial court in refusing the re- From the evidence of plaintiff it appears quest of defendants for a peremptory instruc- that the injuries she sustained were severe, tion. Great stress is laid by counsel for de- painful, and permanent. She was unmarried fendants upon the act of plaintiff in driving and lived with her parents who were gardenforward after she discovered the car and the ers of Belgian nativity. She had always

Mo.)

MICHAELS V. HARVEY

737

ing the work of a farm laborer. She testi-, “a snitch'') was “a friend of ours” and, as a fied:

friend, called and brought Dr. McCall with "I could do most anything, lift a bushel of po- him. She denied that either she or any one tatoes or get stuff in the garden and wheel the authorized by her had authorized Counties wheelbarrow with 200 or 300 pounds on there, and I could lift a bushel and a half or two bush' to employ a doctor, but she accepted his els of potatoes on the side of the wagon and put services on that occasion, and we think the them on the wagon.”

evidence sufficiently discloses that the conHer testimony relating to her condition fidential relation of physician and patient since the injury goes into the subject of its was established and existed between McCall consequences with complete thoroughness, and plaintiff during that examination. The laying bare results of the most secret and relationship was not continued after that delicate nature. She received a blow on the day, Dr. White being called in immediateback that left a permanent soreness and ly after, nor did Counties succeed in obtaintenderness along the spinal column and re- ing employment to bring suit for damages sulted in numerous manifestations of severe for plaintiff. nervous shock. She cannot sleep well and

Defendants offered Dr. McCall as a witwakes screaming from frightful dreams. ness to testify concerning the results of his Her appetite is gone, and she is so weak she examination of plaintiff, but the court suscan do none but the lightest work. She is tained the objection that he was incompetent nervous and apprehensive and for some time to testify under section 6362, R. S. 1909, was afflicted with melancholia and had to be which provides that a physician shall be inwatched to prevent her from attempting self- competent to testify "concerning any infordestruction. Her menstruation became ir- mation which he may have acquired from regular and was accompanied with great any patient while attending him in a profespain. She was married in September, 1912, sional character, and which information was and in the following June gave birth to a necessary to enable him to prescribe for such puny, undersized baby. Dr. White, her fam- patient as a physician." Counsel for defendily physician, introduced by her as a wit-ants then offered: ness, testified to these conditions, and in ad “To show by this witness that he made a thordition found that one of her kidneys had ough examination of plaintiff, of her entire body, been displaced and had become what is and examined the plaintiff in response to all known as a “floating kidney." He was call- there was no evidence of injury, either internally

complaints made by her, and will testify that ed to examine and treat her the second day or externally, and that from the examination of after her injury, and his direct testimony plaintiff by the witness she sustained no injury omits no detail of the conditions which may by her fall except an injury to the right leg and be attributable to the injury.

no consequence whatever. A specialist in nervous and mental diseases

The offer was objected to on the grounds who, at the request of plaintiff, examined her

"that the testimony offered is of a privileged in August, 1912, testified:

I examined her physically. She presented no character in the testimony of a physician, paralysis of the limbs, trunk, motor, or sensor, and it also invades the province of the but she presented a painful condition of the spi- jury," and the objection was sustained. We nal column between the shoulders and accentu- are asked to review these rulings and to left side of the spinal column over the left kid-hold that they constituted prejudicial error ney region. She was very nervous, agitated. for the reason that plaintiff had waived the She had a weak, rapid pulse; her reflexes were privilege of a patient vouchsafed by the all exaggerated, that is, the muscular responses, statute and had opened wide the door to a throwing the muscles into certain activities, were full and complete judicial inquiry into the irritably active, showing exhausted, irritable condition of the central nervous system. Men subject of her injuries and their

their conse tally she was very much agitated, rather fren- quences. zied, sad, despondent, depressed condition, so far as I could see without cause outside of herself.

[3, 4] There is no merit in the objection She lost all interest in everything, nothing in that the offer of proof, if allowed, would terested her,” etc.

have invaded the province of the jury. This He diagnosed her nervous malady as mel- was an expert witness, and the manifest, and ancholia, produced by a severe nervous shock. we think clearly expressed, purpose of the The day following the injury and preceding offer was to elicit testimony of the facts he the day Dr. White was called in to treat had discovered on his examination and his plaintiff, Dr. McCall, a practicing physician admissible opinions as an expert. The called at her home in company with a Mr. fact that the examination occurred during Counties, and, without objection, was allow the existence of a confidential relationship ed to make an examination of her. He states between the witness and the plaintiff is esthat he made the visit at the request of sential to the creation of the privilege inCounties, but thought he was summoned at voked by her under the statute, and, regardthe patient's request and made the examina- ing that fact as established, the resultant tion as her physician for the purpose of privilege must be conceded, and the only treating her. Plaintiff testified that Coun- question for our solution is whether or not ties (who appears to have been a hunter of it was waived by plaintiff when by her own damage suits known in common parlance as testimony and that of her other physicians

she disclosed all secrets concerning the con-, Dr. luen to testify was erroneous. He was sequences to her of the physical injury she the regular physician of defendants, was not received at the hands of defendants.

employed by plaintiff, and states that he was At common law there was no privilege as suffered to make an examination of her purto communications between physician and suant to an attempt to compromise or settle patient, and the beneficent purpose of our her claim against defendants. To permit statute granting such privilege is to protect him to disclose the knowledge of her condition those who from shame or sensitiveness might obtained in this manner would be violative be deterred from employing the aid of phy- of the rules designed to encourage the comsicians and thereby suffer serious conse- promise and settlement out of court of disquences. "If the patient is suffering from puted claims and rights. a malady, the physician should not be al Objections urged against the rulings of lowed to first bring to light that affliction of the court on instructions have been carefully the patient.” State v. Long, 257 Mo. loc. cit. examined and are found to be without merit. 221, 165 S. W. 755. But in the dissenting The case was tried without prejudicial eropinion of Judge Lamm in Smart v. Kansas ror, except in the matter we have noted, and City, 208 Mo. loc. cit. 207, 105 S. W. 709, for that error the judgment is reversed, and 14 L. R. A. (N. S.) 565, 123 Am. St. Rep. the cause remanded. All concur. 415, 13 Ann. Cas. 932, and in the later decisions of the Supreme Court in Epstein v. Railroad, 250 Mo. 1, 156 S. W. 699, 48 L. R. A. (N. S.) 394, Ann. Cas. 1915A, 423, and HALL V. HALL. (No. 11565.) State v. Long, supra, the sensible rule is adopted and applied that when the patient,

(Kansas City Court of Appeals. Missouri.

Nov. 1, 1915.) for purposes of gain or advantage to himself, discloses in evidence the nature and secrets 1. DIVORCE C285-APPEAL-RECORDS-SUF

FICIENCY. of his malady, he renounces his statutory

An appeal from an order denying suit monprivilege so far as that action is concerned ey in a divorce case will be considered, though and opens the door to a full judicial inquiry the bill of exceptions in the principal case was into the subject-matter of his own importa- not in the record and the printed abstract had

not been prepared, for that is the principal purtion into the case. As is well said in State v.

pose for which suit money is necessary. Long, 257 Mo. loc. cit. 221, 165 S. W. 755:

[Ed. Note.-For other cases, see Divorce, Cent. "The very purpose of the statute is to hide, as Dig. g 768; Dec. Dig. Om 285.] with a veil, the malady and trouble for which the physician treated her, and what may have 2. DIVORCE C224--ACTIONS-SUIT MONEY. passed between them in the confidential rela

Since the Married Women's Act gave martionship of physician and patient. But when the ried women the powers of femes sole, suit money veil has been lifted by the patient or with her in divorce cases will not be awarded unless the consent, and the secrets of the sick chamber giv- wife has no adequate separate income; but en to the world, what logic is there in saying where she is entirely destitute of means she is that the patient can clog the wheels of justice entitled to a reasonable allowance for suit monitself, by closing the mouth of other physicians, ey to prosecute an appeal from an adverse judgwho know the real facts. In other words, if the ment in a divorce action. patient raises, or permits to be raised, the veil

[Ed. Note.-For other cases, see Divorce, Cent. of secrecy with lying lips as to what the condi- Dig. § 646; Dec. Dig. Om 224.] tions were, should this waiver of secrecy still 3. DIVORCE 221–ACTIONS ORDERS FOR leave to her the power of suppressing the truth, SUIT MONEY. by objecting to other physicians who about the An order allowing or denying suit money same time treated her for the same identical to enable wife to prosecute an appeal from an alleged trouble? We think not. In other words, adverse judgment in a divorce suit is entirely if a patient is suffering from a given malady, independent from the issues in the divorce suit, and is treated by several physicians near the and the right thereto is in no way dependent same time, for the said same trouble or malady, on the right to divorce. then, if she and one of her physicians with her consent make public the character of her trouble, Dig. $$ 642, 643; Dec. Dig. ww221.]

[Ed. Note. For other cases, see Divorce, Cent. she has waived the right to longer keep the exact character of that trouble further secret. and 4. DIVORCE C223—ACTIONS-RIGHT TO SUIT the other physicians are competent to testify as

MONEY. to what this malady or trouble was in reality.”

Where the lower court which denied a

wife divorce awarded her temporary alimony It is immaterial that Dr. McCall and Dr. pending appeal; that order showed that she was White were not employed at the same time also entitled to suit money; it appearing that but examined plaintiff on different days. she was destitute, so the denial of suit money

was an abuse of discretion. "If the several physicians treat for the same trouble (as is the case here), then it can Dig. & 645; Dec. Dig. 223.]

[Ed. Note.-For other cases, see Divorce, Cent. make no difference that their treatment was at different dates." State v. Long, 257 Mo. Appeal from Circuit Court, Jackson Counloc. cit. 217, 165 S. W. 754. The subject- ty; Frank G. Johnson, Judge. matter of the two examinations being the "Not to be officially published." same, the waiver of the privilege as to one Action by Sylvia M. Hall against John waived it as to the other. The court erred W. Hall, in which there was a judgment disin ruling that the privilege was not waived. missing the petition and cross-petition, and

[5] We do not think the refusal to allow plaintiff appealed. From an order granting

Mo.)

HALL V. HALL

739

alimony pendente lite but denying suit mon- | necessities demand they should be made. If ey, plaintiff also appeals. Order reversed she possess sufficient means of her own, she and remanded.

must use them in the prosecution or defense

of the action. House, Manard, Allen & Johnson, of Kan

"Suit money is given only to the wife in need, sas City, for appellant. Sparrow & Page so that if she has an adequate separate income, and W. S. Gabriel, all of Kansas City, for it is withheld. Or, if she has sufficient in part respondent.

the husband must supply the residue.” 2 Bishop on Marriage and Divorce (1891) $ 978; Rut

ledge v. Rutledge, 177 Mo. App. 469, 119'S. W. JOHNSON, J. Plaintiff brought suit for 489. divorce alleging indignities which would Where it appears she is entirely destitute constitute a statutory ground. Defendant of means, she is entitled to a reasonable alanswered and filed a cross-bill praying for lowance for suit money to prosecute an apa divorce for a similar cause. At the con- peal from an adverse judgment in the trial clusion of the trial the court dismissed court, and it would be a clear abuse of juboth petition and cross-petition. Motions dicial discretion to deny her such allowance. for a new trial and in arrest, filed by plain- In such cases the wife is entitled to alimony tiff, were heard and overruled, and plaintiff and suit money so long as the litigation conappealed.

tinues. State ex rel. v. Seddon, 93 Mo. 520, Before the appeal was allowed, the court 6 S. W. 342; Libbe v. Libbe, 166 Mo. App. heard a motion filed by plaintiff for alimony 240, 148 S. W. 460. pendente lite and for suit money to prose- [3] And the matter of allowing such alicute the appeal, and adjudged that plaintiff mony and suit money, “although an adjunct recover alimony in the sum of $6 per week of the action of divorce, is an independent "for the support of plaintiff and her minor proceeding standing upon its own merits child pending appeal,” but overruled the and in no way dependent upon the merits of motion for suit money. The present appeal the issues in the divorce suit, or in any way is prosecuted by plaintiff from the latter or- affected by the final

final decree

upon those der.

merits."

State ex rel. v. Seddon, supra; [1] The bill of exceptions on the motion Dowling v. Dowling, 181 Mo. App. 675, 164 S. for alimony and suit money pending appeal W. 643. appears in plaintiff's abstract of the rec- [4] The finding of the trial court that the ord, and, from the evidence therein which wife was the guilty party does not deprive was adduced on the hearing of the motion, her of her right to an appeal or of her right it appears beyond question that defendant to the means of prosecuting it and of susis permanently employed and is earning $5 taining herself during its pendency. Libbe per day, and that plaintiff, who has the cus- v. Libbe, supra; Robbins v. Robbins, 138 tody of their minor child, is working for Mo. App. 211, 119 S. W. 1075; Rosenfeld v. $7 per week and is entirely destitute of Rosenfeld, 63 Mo. App. 411;

App. 411; Adams v. other means.

Adams, 49 Mo. App. 592. Recognition of this The bill of exceptions in the main case has rule is found in the instant judgment on not been made up and, of course, is not the motion for alimony pendente lite and before us, and it is argued by respondent suit money. The allowance of alimony pendthat we cannot review the ruling of the ing the appeal for the support of plaintiff trial court on the motion for suit money "in and the child, not only was a proper recognithe absence of a bill of exceptions, or some tion of the rule just stated, but amounted record of the case proper disclosing the facts to an adjudication that none of the excepas they were before the trial court.” If tional reasons for denying suit money rewe should sanction this view of the law, the ferred to in Adams V. Adams, supra (such practical result would be to deny the right as a lack of good faith in prosecuting the of appeal in nearly every instance where a appeal), exist in the present case, since such destitute wife loses her divorce suit in the objections would apply equally as strong trial court, since the principal need for suit against the allowance of alimony pendente money for an appeal is to furnish the lite as against the allowance of suit money. defeated and indigent wife with the means That adjudication relieved plaintiff from to defray the cost of the bill of exceptions any duty of bringing up the record in the and printed abstract of the record.

main case on the present appeal and vitally [2] Formerly the right of the wife to ali distinguishes this case from that before the mony pendente lite and suit money was ab- St. Louis Court of Appeals in Adams v. solute, and such allowances were made as a Adams, supra, where it was held that, in matter of course. But, since the enactment the absence of such record, the appellate of the married women statute which with court could not know whether the action of respect to property and property rights has the trial court in overruling the motion was given to married women the rights and priv- not based on the finding, compelled by the ileges of a feme sole, the old rule as to ali- evidence adduced at the trial of the cause mony pendente lite and suit money has given on its merits, that the wife was not proseplace to the rule that such allowances will cuting the action and appeal in good faith.

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