Opinion
No. 31458.
December 3, 1934.
1. RAILROADS.
Porter who had finished loading baggage and was standing beside train held entitled to recover for injuries inflicted by railroad trainmaster in kicking and striking porter, notwithstanding porter was defacing train.
2. WITNESSES.
Dentist is not a "physician" within statute declaring as privileged all communications made to a physician by a patient or by one seeking professional advice (Code 1930, section 1536).
3. WITNESSES.
Statute declaring as privileged communications made to physician by patient or one seeking professional advice must be limited to its language and clear purpose, and should not be extended by construction (Code 1930, section 1536).
4. APPEAL AND ERROR.
Offer of proof of what was expected to be proved by dentist held insufficient to justify reversal of judgment for patient suing railroad for injuries on ground that dentist's testimony was not privileged, where record did not disclose that dentist's testimony would have contradicted that given by patient or would have mitigated damages awarded by jury (Code 1930, section 1536).
ON SUGGESTION OF ERROR. (Division B. Jan. 14, 1935.) [158 So. 551. No. 31458.]1. APPEAL AND ERROR.
Judgment will not be reversed for error, except where rights of complaining party were thereby prejudiced.
2. APPEAL AND ERROR.
Alleged error in excluding testimony will not be noticed on appeal unless witness was placed on the stand and his interrogations and answers were made part of the record, or an offer of proof was made and preserved in the record, except that, where it appears that testimony concerning privileged matters is sought, no interrogation as to such matters should be permitted.
3. APPEAL AND ERROR.
Where trial judge erroneously ruled that a dentist was a physician within the statute making patient's communications to physician privileged, but party calling the dentist neither interrogated him and preserved his answers in the record, nor made an offer of proof, alleged error in excluding dentist's testimony could not be noticed on appeal.
APPEAL from the Circuit Court of Jones County. HON. W.J. PACK, Judge.
Action by Loverett Willis, by his next friend, against the G., M. N. Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
On suggestion of error overruled.
For former opinion, see 157 So. 899.
Welch Cooper, of Laurel, for appellant.
The appellee and his companion, Grady Kidd, say that he was doing nothing at the time of the assault. Appellants offered proof that the appellee was scratching the side of a passenger coach with a nail or some other object.
The rules of law of all civilized communities recognize the natural right of individuals to acquire and own property, and as an incident to such right to protect the property against the trespass of other individuals.
2 R.C.L., p. 555; Hairston v. State, 54 Miss. 689.
Lovern's authority or whether his act was within the scope of his employment was for the jury.
Appellee offered Dr. Harbour as a witness to the extent of the injury, the type and character of injury, and the prognosis. Objection was made on the ground that the privilege between physician and patient existed. This objection was sustained. The witness is a dentist.
Section 1536, Code of 1930.
The statute says "physician or surgeon."
Goodman v. Lang, 130 So. 50, 158 Miss. 204; Kress Company v. Sharp, 126 So. 650, 156 Miss. 693; People v. De France, 104 Mich. 563, 62 N.W. 709.
A dentist is not a person duly authorized to practice physic or surgery within a statute relating to privileged communications.
Howe v. Regensburg, 75 Misc. 132, 132 N.Y. Supp. 837; Missouri v. Fisher, 119 Mo. 344, 24 S.W. 167, 22 L.R. A. 799; William Laurie Co. v. McCullough, 174 Ind. 477, 90 N.E. 1014; Section 4295, Code of 1930; Chapters 104 and 148, Code of 1930; Hayden v. State, 81 Miss. 291, 33 So. 653; Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693.
The exclusion of Dr. Harbour as a witness was erroneous.
This court in Martin v. Minor, 50 Miss. 42, announced the rule that evidence of provocation should be admitted in extenuation or in mitigation of the damages.
Alabama V. Ry. Co. v. Harz, 42 So. 201, 88 Miss. 681.
One of the several elements which enter into the liability of a master for a tort committed by one procured by his servant to assist him in the performance of the master's work is that the act complained of must have been committed within the course of the servant's employment and in furtherance of the master's business.
39 C.J. 1271; Natchez, C. M.R. Co. v. Boyd, 107 So. 1, 141 Miss. 593; Davis v. Price, 97 So. 557, 133 Miss. 236.
A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor.
6 Labatt's Master Servant (2 Ed.), p. 6704; Wells v. Robinson Motor Co., 153 Miss. 451, 121 So. 141; Fisher v. Westmoreland, 101 Miss. 181, 57 So. 563; Craft v. Magnolia Stores, 138 So. 405, 161 Miss. 756; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823; Illinois Central R. Co. v. Green, 94 So. 793, 130 Miss. 622.
F.B. Collins, of Laurel, for appellee.
Appellee and his witnesses testified that the only thing appellee had done at the time he was assaulted by appellant, John Lovern, was that he obeyed the request of the porter to assist two negro women passengers from one train to the other, and that when he had assisted them from one train to the other, as requested by the said negro porter, and gotten off the train, that the defendant, John Lovern, walked up behind him and kicked him, and struck him in the mouth with his fist. He thus made out a prima facie case on civil liability upon assault and battery upon him.
Jamison v. Mosley, 10 So. 584; Lizana v. Lang, 43 So. 476.
The lower court was justified in directing the jury on the question of liability to find a verdict for the appellee, because this is not a legal justification or excuse for an assault under the circumstances.
John Lovern had general supervision over the movement of appellant's trains at said time, and as such general supervisor, was acting within the scope of his authority and in and about the business of appellant.
Wise v. Peugh, 106 So. 81.
Statutes making communications between physicians and patients privileged are of course intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing physicians from making known to the curious the ailments of their patients, particularly when afflicted with diseases which might bring reproach, criticism, unfriendly comment, or disgrace upon the patient, if known to exist. The view is sometimes taken that such statutes, being remedial, should receive a liberal interpretation and not be restricted by any technical rule.
28 R.C.L., p. 532, sec. 121; People v. Bloom, 193 N.Y. 1, 85 N.E. 824, 127 A.S.R. 931, 18 L.R.A. (N.S.) 898; Gartside v. Conn. M.L.I. Co., 76 Mo. 446, 43 Am. Rep. 765; 17 A.S.R. 567.
The appellee, Loverett Willis, was plaintiff in the court below, and filed a suit against the appellant for damages for a personal assault committed upon him by the trainmaster of said railroad company.
The case for the plaintiff was that he had been asked by one of the colored porters of the G., M. N. Railroad Company to assist some women in transferring their baggage from one train to another at Union, Mississippi, where the two trains met; that he carried the baggage from one train to another, and, as he was coming off of the train, the trainmaster ran up and kicked him and told him to stay off that train, and, when the plaintiff turned to look and see who it was that kicked him, the trainmaster struck him in the mouth, inflicting an injury, and breaking one of his teeth; that the plaintiff suffered from this injury, which caused inflammation resulting from pus forming in and around the broken tooth; and that he was physically injured.
The appellant contended that the appellee was standing by the train as it started to roll out going north from Mobile, Alabama, to Jackson, Tennessee, and was scratching said train with some instrument, and the trainmaster "hollered" at him to desist; that appellee paid no attention, and the trainmaster kicked at him but did not strike him, and the plaintiff squared himself and looked like he was going to strike the trainmaster, who then struck the appellee in the mouth; that the appellee then turned and went up town. The appellant railroad company also denied that the trainmaster was acting within the scope of his duties.
There was considerable conflict between the evidence for the appellee and the appellant, but the jury found for the appellee in the sum of seven hundred fifty dollars.
The appellee testified that he consulted a dentist in Union, Mississippi, and was treated by him. The appellant sought to introduce this dentist, whereupon objection was made by the appellee which was sustained by the court. The statement made by the attorney for the appellant, defendant in the court below, as to what he expected to prove by this dentist, is as follows:
"By Mr. Cooper. Your Honor, we simply propose to show by Dr. Harbour the extent of the injury which he examined Larkie Willis (appellee here) what type and character of injury he had, and the prognosis to be derived therefrom.
"By the Court. Is there any question about privilege —
"By Mr. Hosey. I would like to ask him two questions, I don't know if the record is absolutely straight or not. Doctor, this boy came to you to be examined, did he not? A. Yes, he came up there.
"Q. And you made an examination of him? A. Digital examination, merely a microscopic examination.
"Q. And he was your patient at the time he came in there? A. Well, I don't know sir, he —
"Q. He came to you? A. He came to me.
"By the Court. The statute doesn't mention a dentist, does it?
"By Judge Collins. I really don't know, but a dentist is a physician.
"By the Court. Objection sustained."
We think the proof was sufficient to sustain the verdict for liability. The trainmaster admits striking the appellee and kicking at him, giving as a reason therefor that the appellee was doing some injury to the train, and, when called on to desist, refused to do so. The fact testified to by the trainmaster does not justify the infliction of an assault, and, at most, would not call for any more force than was necessary to prevent injury to the property of the appellant. The action of the trainmaster was clearly in excess of any such necessity.
We also think the proof was sufficient to show that the trainmaster had authority to control the train and to prevent injury thereto and to protect the property of the appellant.
We are of opinion that a dentist is not a physician within the intent and meaning of section 1536, Code of 1930. The purpose of this statute was to protect physicians and surgeons from having to testify as to communications made to them in their professional capacity, and to protect patients from having to disclose statements made to physicians. The statute must be limited to its language and clear purpose. It has the effect of preventing facts from being disclosed which would often be material to the administration of justice, and it should not be extended by construction. We are also of the opinion, however, that the statement of what was expected to be proved by the witness, the dentist, was not sufficient to cause a reversal of this case. For aught that appears in the record, this dentist may have testified to the exact facts testified to by the appellee. It does not appear from the record that the dentist's testimony would have contradicted that given by the appellee, or that it would have mitigated the damages to be awarded by the jury. There should have been a sufficient disclosure of this witness' testimony to show that it might have resulted in a different verdict in the case.
The judgment of the court below will be affirmed.
Affirmed.
ON SUGGESTION OF ERROR.
The rule has been long established in this jurisdiction that a judgment will not be reversed for error unless it be shown by the record that the error was actually prejudicial and harmful to the rights of the complaining party. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 117, 145 So. 896; Goins v. State, 155 Miss. 662, 667, 124 So. 785. Consonant with that rule, when a party would seek a reversal because of excluded testimony, he must either place the witness on the stand, ask the questions, and have the answers made of record, or else the witness must be presented, and there must be a specific statement of what the answers or testimony of the witness would be, if allowed, so that the court may see from the record itself whether the offered evidence would be material and of benefit to the merits of the case, and whether its exclusion was actually harmful and prejudicial to the offerer. Bradley v. Howell, 161 Miss. 346, 354, 133 So. 660, 134 So. 843.
To the rule last stated there are a few exceptions, and one of these is when a witness is tendered and it is sought to examine him upon matters which the law forbids him to disclose. For instance, the law forbids that an attorney shall disclose the knowledge which he has acquired from or for his client in and about his client's business. When an attorney is placed on the witness stand and, without his client's consent, it is attempted to interrogate him about his client's business, the witness is not only privileged to refuse to answer, it is his duty to refuse. And the offerer cannot state into the record what he expects to prove by that witness, for the law denies the right to prove by that witness anything of the matters sought to be elicited. Likewise as to a physician, upon which subject this court said in United States Fidelity Guaranty Co. v. Hood, 124 Miss. 548, 571, 87 So. 115, 119, 15 A.L.R. 605: "The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury." In these cases, if the knowledge sought to be placed in the record was acquired during the existence of the relationship which makes the information privileged, then the inquiry is not permitted to proceed further than to develop the actual existence of the privileged relationship.
Seeking to avail of the exception stated, appellant argues in its suggestion of error that, when the trial judge ruled that a dentist is a physician, appellant was thereby in effect precluded from getting into the record what appellant expected to prove by the dentist, tendered as a witness. But the law is that a dentist is not a physician, and communications to or knowledge obtained by a dentist is not privileged; and parties must try their cases under the law, or at least must endeavor, by all reasonably available means, to do so. A dentist not being a physician and not coming under the stated exception, it was the duty of appellant to specifically state into the record what was expected to be proved by him, and, had the court refused to allow appellant to so state, then the error would be reversible, and not until then. But appellant did not so specifically offer, and we must therefore adhere to our original opinion.
Suggestion of error overruled.