Summary
In Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405 (1950), we remanded for a new trial on the issue of damages where a physician's hearsay testimony on the quantum of damages was erroneously admitted.
Summary of this case from State Farm Mutual Automobile Ins. Co. v. StewartOpinion
No. 37358.
February 13, 1950.
1. Appeal — verdict — not reversible, unless.
When a verdict is supported by substantial evidence and is not manifestly against the great weight of the evidence, it will not be disturbed on appeal.
2. Trial — instructions — read together.
When the appellant was granted an instruction thoroughly covering an important phase of the applicable law, an obscure instruction on the same phase obtained by appellee will not require a reversal since all instructions must be read together.
3. Master and servant — safe place to work — continuing duty of master as to.
The employer in a plant manufacturing wood products must use reasonable care to maintain the floor, where an employee is required to work, in a reasonably safe condition as against accumulations of trash and this is a continuing duty so that the place where the employee is required to work shall continue to be reasonably safe from such accumulations.
4. Trial — evidence — hearsay — physician's statements to his patient.
Testimony by plaintiff as to what his physician stated to him in consultation is hearsay, and when going to substantial features of the plaintiff's injury and the seriousness thereof it was reversible error when admitted over defendant's objection.
5. Witnesses — physician and patient — privileged communications statute — waiver.
The plaintiff in his efforts to have the defendant bring plaintiff's physician, who resided in another county, or the defendant's company physician as witnesses, waived his rights under the privileged communications statute, but this did not require the defendant to accept or act upon it.
6. Witnesses — physician — subpoena, must obey.
Although under the statute the testimony of a physician may be taken by deposition, the physician may be required to attend court in response to a subpoena as other witnesses are required to do, and, the privileged communications statute being waived, may be required to testify as to all matters within his present knowledge gained in the ordinary or conventional relation of physician and patient.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, Judge.
Brandon, Brandon, Hornsby Handy, for appellant.
The court below erred in admitting hearsay evidence and testimony by the plaintiff as to what he had been told by his doctor as to the nature and extent of his injuries, nature and extent of his disabilities and nature and extent of treatment, surgical and otherwise that would subsequently be required for him.
Without the hearsay evidence offered by the plaintiff as to what his doctor had told him, there is no credible evidence in this record as to the nature and extent of injuries received by the plaintiff as complained of by him.
Over strenuous objections by the defendant, (appellant here), the court permitted the plaintiff to testify as to what his doctor had stated was the nature and extent of his injuries, what was the nature and extent of his disabilities, and what further surgical and other treatment would be required of him and also permitted the plaintiff in the trial below to guess as to what further treatment he would have to have.
The court below erred in overruling the defendant's motion to exclude the evidence for the plaintiff and direct the jury to return a verdict herein for the defendant, which motion was made when plaintiff rested his case.
As it was stated in the case of E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350, the degree of care required of an employer to furnish instrumentalities which will render employment reasonably safe must be commensurate with the known dangers.
Among the more recent Mississippi decisions supporting that which has been above stated are the following cases: Forbus v. Cobb Bros. Const. Co., 184 Miss. 647, 185 So. 243, Suggestion of Error overruled 184 Miss. 647, 186 So. 643; Wunderlich v. Walker, 186 Miss. 149, 189 So. 523; Harvey v. Smith, 190 Miss. 130, 198 So. 739; Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532. See also Eagle Cotton Oil Company v. Sollie, 185 Miss. 475, 187 So. 506; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; and Wilson Co. v. Holmes, 180 Miss. 361, 177 So. 24.
Of particularly close application to the case at bar is the decision in the case of Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912.
The third assignment of errors filed by us on this appeal had to do with the exclusion of certain evidence offered on behalf of the defendant, (appellant here). Reviewing the record herein, we do not consider that the exclusion of evidence offered by the appellant was ultimately of such a prejudicial nature as to cause a reversal of this cause on that ground and hence, we do not at this time discuss that assignment of errors.
The court below erred in refusing to give for the appellant its requested peremptory instruction, being defendant's instruction no. 1. What we have hereinabove said with reference to the second assignment of errors is here applicable and need not be repeated.
As to the error of the court below in giving for the plaintiff certain instructions for the plaintiff. In the case of Holliday v. Fulton Band Mill, 142 F.2d 1006, it was held that a servant assumes the ordinary risk of his work he has undertaken, including the risk of his fellow servants not always being careful in the performance of their duties. This federal decision is in line with the decisions of the Supreme Court of the State of Mississippi and indeed is predicated thereon. In the case of Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689, this court reiterated the rule.
A workman that presents himself for work of a given kind and offers no complaint as to his ability to do the work or as to the place of the work if it be ordinarily reasonably safe, assumes the risk of his employment particularly when as the work progresses there are changing conditions necessarily resulting from the progress of the work. As to this see the cases of Harris v. Pounds, 185 Miss. 688, 187 So. 891; City of Tupelo v. Payne, 176 Miss. 245, 168 So. 283. L.A. Whittington and Jos. E. Brown, for appellee.
In our opinion, the cases cited by the appellant, while stating correct principles of law, have no application or bearing to the place of work furnished the appellee, or the manner and method of work provided him by the appellant. As an illustration, in the case of Wilson Company v. Holmes, 190 Miss. 361, 177 So. 24, cited by the appellant, the court held that there was no showing that the employer knew of the trash on the floor or had an an opportunity to remove it and that such trash as was on the floor was a small quantity and was an unavoidable incident to the performance of the work.
In the case now before the court, the appellant admits that fifty-five gallons, or upwards, of trash would accumulate right about Mr. Cather's feet during the eight hour shift; that its machine was inexpertly and inefficiently arranged and that the debris disposal machine placed just four feet away had not even been put in operation and was so imperfect and inefficient that it had not even, at the time of the trial, been of any service at all.
Can the appellant, with its years of experience, blame these circumstances on the appellee who, to the appellant's knowledge, was a green and inexperienced employee? Was it the appellee's fault that the only machinery for debris disposal was nearly a quarter of a mile away? Was it his fault that the slat machine, which at the time of the trial worked efficiently so as to leave no trim, worked so inefficiently at the time of the appellee's injury that it admittedly spewed fifty-five gallons of debris about the appellee's feet? Can the appellee be blamed because the appellant, at the time of his injury, had not seen fit to even put the macerating machines, distant just four feet away, into operation, or that the machines were so injudiciously selected and improperly constructed that they have never in the history of this plant worked efficiently?
We most respectfully submit that there is no case in the books where an employer can escape liability by pleading his own inexperience and undertaking to assign, as a reason for injury to an inexperienced employee, the fact that its plant and its method of operation were then in the experimental stage.
Only two off-bearers were being used at the time of Mr. Cather's injury. Is he to blame because later, as testified by the appellant's foreman, it was found that at times three off-bearers were reasonably necessary?
Under these circumstances, knowing full well that the appellee was injured as the direct and proximate cause of negligence on the part of the appellant in its method of work and in its machinery and lack of machinery, the appellant seeks a reversal of this case, minutely picking the record and coming up with complaints which, if they have form, have no substance.
As an illustration, the appellant contends that the court erroneously permitted the plaintiff to testify that his doctor had told him that an operation would be necessary. Appellant contends that this was hearsay testimony and did it such grave harm as should work a reversal of this case, and the appellant makes this argument with seeming seriousness, in spite of the fact that repeatedly, over the objection of the plaintiff, had its witnesses testify, proved by the rankest hearsay, the most vital portion of its defense, which was to the effect that the plaintiff had been instructed in his duties, both as to himself cleaning up the trash and making reports of injury. The plaintiff had testified that he was without means or property, that he had been to Dr. Blake in Jackson and to Dr. Hicks, the company doctor, in Natchez, and to Dr. Louis Magee in Natchez, a doctor of the plaintiff's selection. He was financially unable to secure the testimony of these doctors and definitely stated that as to Dr. Magee and even the company doctor, both of whom were then in town, he had no objection to them testifying. He himself was unable to pay the expert fees. The defendant made no effort at all to put on its surgeon, Dr. Hicks, who had first examined and treated the injured plaintiff, although he was available, as was Dr. Magee; and if an operation was not necessary and if the plaintiff suffered no injury to his back at the date complained of, they could have proved it by these doctors; certainly by their own surgeon, Dr. Hicks. It is therefore untenable for the appellant to argue that the court permitted an error in letting the plaintiff testify that he had been told by his doctor that he needed an operation, or that the fee would be $250.00.
Brandon, Brandon, Hornsby Handy, for appellant in reply.
Counsel for appellee apparently seek to avoid the effects of the serious error by them, and that the court below committed, in producing and admitting hearsay testimony by plaintiff as to what his doctor had told him with respect to his injuries, disabilities, and etc., by some sort of plea of confession and avoidance. They confess their fault and the error of the court below, but try to avoid the consequences thereof by saying that the defendant produced some hearsay evidence into the record. They cite none, and we are aware of none so offered by the defendant; but, be that as it may, such would not and could not cure this record of the error in this respect complained of.
The failure of the plaintiff to take the deposition of his doctor, or to make any effort to produce the doctor as a witness by the ordinary process of the court, does not justify the admission of hearsay evidence, nor does same create an exception to the rule prohibiting the admission of hearsay evidence.
It was not incumbent upon the defendant in the course of this trial to produce for the plaintiff (if they would have been favorable to him) Doctors Magee and Hicks. Both those doctors as this record shows, were in Natchez, and could have been brought into court by the plaintiff by writ of subpoena. Since when is it incumbent upon a defendant to offer negative evidence by way of defense when no affirmative evidence, that is admissible or credible, has been offered by the plaintiff on a given subject by the plaintiff?
It is beyond question that the testimony of the plaintiff as to what he had been told by Dr. Blake (known throughout the State of Mississippi as a most eminent practitioner and surgeon) carried great weight with the jury in the trial of the case, particularly when the trial judge overruled the objections made by the defendant, whereby in effect telling the jury that they could accept and act upon such hearsay evidence. This was serious and vitally prejudicial error committed against this appellant. That testimony went, not only as to the extent of injury and disability, and hence to the quantum of damages; but same constituted the only corroborative evidence to the testimony of the plaintiff that he had, indeed, been injured at all, and the manner in which he sustained his alleged injury.
So, we submit, the erroneous admission of the evidence as to what the doctor had stated to the plaintiff, is cause for reversal of this cause, not alone on the question of the quantum of damages, but on the question of liability itself. It is most likely that the jury, without having before it that which the trial court in effect told them they could consider as to the fact of injury of the plaintiff, might well have concluded that the plaintiff had not, in fact, been injured at all by the means or in the manner complained of.
Amongst others, the admission of hearsay evidence on relevant issues has been condemned by the Supreme Court in the following cases: Long v. Griffith, 113 Miss. 659, 74 So. 613; Illinois Central v. Langdon, 71 Miss. 146, 14 So. 452; Rothchild v. Hatch, 54 Miss. 554; Citizens Bank v. Callicott, 178 Miss. 747, 174 So. 78; Life Casualty Co. v. Nix, 172 Miss. 91, 158 So. 797; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; McRae v. Robinson, 145 Miss. 191, 110 So. 504; Union Planters Bank v. Rylee, 130 Miss. 892, 94 So. 796.
We know of no exception of or to the rule that will permit a plaintiff to testify as to that which he has been told by his physician as to an issue vital to a cause, as was done in this case.
Suit was brought by appellee against appellant in the Circuit Court of Adams County for personal injuries alleged to have been suffered on June 9, 1948, while appellee was in appellant's employ as an "off-bearer" or "take-off" man in the latter's plant wherein were manufactured wood products.
Appellees job was to take off a "slat machine" certain manufactured boards, after they had been ripped; turn around and stack them on "dollies"; and when about ninety such boards had been so stacked, to push the "dollie" out of the way, so that an empty "dollie" could be moved up. These stacks would be about five feet high when the load was completed. These boards were "bumped" into bundles of four and then placed on the "dollie". They were fed into the "slat machine" two at a time, sawed in two pieces, and thus became four boards when appellee took them off of the machine, turned, and placed them on the "dollie". This operation, according to appellee's evidence, resulted in trimmings, shavings, and fragments of the boards accumulating under the feet of the "take-off" men, and appellant provided no special men to clean them up, occasionally picking up persons around the plant to do so. According to appellee's evidence, it was not his duty to do this cleaning up; he had never been instructed to do it; and could not do so without interfering substantially with his necessary duties as "take-off" man. As a consequence of this condition, and these circumstances, on the date and at the time of his injury, these chips, fragments, trimmings, and shavings had accumulated on the floor in the restricted area in which appellee was required to work to a depth of approximately five inches, rendering an unstable footing precarious, so that, (operating at a very rapid speed as he was then required to do,) in turning from taking the boards off the machine to stack them on the "dollie" at his back, he slipped on this accumulated debris and wrenched and injured his back severely. He testified that he had no power or authority to control the speed of the slat-machine's operation.
Appellant contradicts most of this testimony by its own witnesses, who are not always in agreement on substantial circumstances, however. Nevertheless, in substance, its testimony was to the effect that the operation produced only soft shavings on which it was impossible to slip as claimed by appellee; that it was the duty of appellee to clean up the debris, for which he had ample time and which he had been instructed to do; that sufficient facilities had been provided for cleaning up if they had been used, which appellee denied; that, as a matter of fact there was no such piled-up debris as appellee represented; that the operation was moving at a very slow rate of speed. It claims that no actionable negligence on its part was proven.
Appellant introduced into the record at the trial specimens of the boards, and some shavings, selected by its employees long after the date of the injury, with no proof or pretense that they were picked up from the floor on June 9, 1948. Hence, they are of little value in demonstrating the kind of chips, trimmings, and shavings that were on the floor at the date of the injury. The jury probably so considered them.
At any rate, appellee was given leave of absence by the proper official, after he had been sent to the company doctor, and, on his return to employment was assigned light work, until he was discharged on instruction of the plant supervisor. In this connection, it is interesting to note this series of questions and answers, when a witness for appellant was on the stand:
"Q. Who told you to let him go? A. The supervisor.
"Q. Who is he? A. Mr. Morgan.
"Q. Why? A. He was not able to do all the work.
"Q. Didn't you tell him it was on account of that back injury? A. We didn't go into that. I knew he couldn't do all the work because of the injury on the slat bed.
"Q. It was understood that that was why you were letting him go? A. Yes.
"Q. That it was on account of his back? A. That is right."
It will thus be seen that the jury had before it a clear issue of fact and that their verdict for appellee was on conflicting testimony as to the issue of liability. The declaration charged that appellant did not exert reasonable care to furnish appellee with a reasonably safe place to work, while appellant argued that his injury was the result of a mere accident occasioned by a risk ordinarily incident to his employment. As an illustration of the care with which appellant submitted its case to the jury, even as to smaller details, we quote the following instruction granted it: "The Court instructs the jury for the defendant that if you believe from the evidence that it was one of the duties of the plaintiff to clean up around the machine where he was working and that he had reasonable time to do so, then the jury shall return a verdict for the defendant." The jury returned a verdict for the plaintiff, appellant here, thereby accepting as true the version of appellee, not only on that particular point, but on the merits generally. (Hn 1) Since we cannot say that this verdict does not have substantial evidence to support it, and is not manifestly against the great weight of the evidence, we have no authority to disturb it.
(Hn 2) Appellant complains of a certain instruction granted appellee, about which we have had some discussion as to its sufficiency in directing the jury's attention to the issue of whether or not appellant took reasonable care to furnish appellee with a reasonably safe place to work. However, that phase of the law was thoroughly covered by instructions granted appellant. Since all instructions must be read together, we find no reversible error here. This issue was thus also fairly and sufficiently submitted to the jury, and the verdict was against appellant.
Appellant cites several cases to sustain its position as to the foregoing legal proposition, such as Wilson Company, Inc., v. Holmes, 180 Miss. 361, 177 So. 24, 27, wherein we said: "Appellant was only required to maintain its floor in a reasonably safe condition and guard against such accidents as a reasonably prudent person, under the circumstances testified to, could have anticipated or foreseen." Also Williams v. Lumpkin, 169 Miss. 146, 152 So. 842. Of course, those cases correctly announce the law, but from our study of all the evidence, of which we have given only a brief and necessarily circumscribed summary, supra, we are convinced they are not obstacles to our sustaining the verdict of the jury on the facts before them and us in the case at bar, the facts there differing materially from these now before us.
(Hn 3) The nearest case in point we have been able to find is that of Finkbine Lumber Company v. Cunningham, 101 Miss. 292, 57 So. 916, 918. There we declared: "It was not only the duty of the appellant to furnish the appellee with a reasonably safe place in which to work when he started at his work, but this was a continuing duty. The appellee was engaged in the manufacture of staves after the timber had been cut and handed to him. It was no part of his duty to keep the place where he was working in a reasonably safe condition, free from the accumulation of trash; but it was the ever-present duty of the master to see that this was done. Appellee testifies that because the master neglected his duty, and allowed this trash to accumulate there, he was injured while attempting to reach the oil for the purpose of oiling the saws; and if this testimony is true, which the jury have said by their verdict is the fact, there is no question as to the liability of the master."
In the case at bar, although appellant's plant had been in operation some weeks, appellee had been on this particular job only from one to three days before his injury, according to the differing versions of various witnesses for both parties hereto. According to his testimony, he was not started with a reasonably safe place to work, and appellant continued to neglect to furnish a reasonably safe place to work, approximately resulting in his injured back and physical incapacity. Therefore, it seems to us that the Finkbine case, supra, is very much in point here.
But, appellant complains of certain hearsay testimony, which went to the quantum of the damages, in addition to the nature of the injury. It will be here remembered that appellant's agent, who discharged appellee, admitted it was because of his back injury, on the slat machine. Therefore, any prejudice to appellant in the admission of the hearsay testimony was on the amount of the damages. Appellant's position is well supported by such cases as Long v. Griffith, 113 Miss. 659, 74 So. 613; Citizens Bank of Coldwater v. Callicott et al., 178 Miss. 747, 174 So. 78, and others. Appellee's only answer is that a doctor of medicine or surgery is an expert, and that he was too poor to defray the expense of expert testimony, and that appellee also had used hearsay testimony in its behalf. Of course, it must be conceded that this is no answer at all.
(Hn 4) The objectionable testimony is revealed in part by the following questions and answers, wherein appellee related what a Jackson bone specialist told him, in consultation, for prospective treatment:
"Q. What was his fee? A. He said his fee would be $25.00, and I would be in the hospital 15 days and possibly be 6 months before I could go to work.
"Q. What would the operation consist of? A. He said he would have to take a piece of bone out of my leg and graft it in my back, put it on the spine." Objection was duly made, which the trial judge overruled, and thereby, in our opinion, committed reversible error.
(Hn 5) Appellee, in an effort to induce appellant to produce the doctor, or to have its company doctor testify, waived his rights under the rule governing privileged communications, which appellant was not required to accept or act upon, and which it did not.
(Hn 6) There seems vaguely to be some idea in counsel's mind that doctors are entitled to immunity from performing the duties of witnesses, which we do not think they ordinarily possess. It is said in 70 C.J., Witnesses, Section 16, that: "Notwithstanding his preference to attend to his practice, a physician, attorney, or other professional witness may, like any other person in the discharge of his duty as a good citizen, be compelled by an ordinary subpoena to attend court and testify as to matters within his knowledge, . . .".
We are not dealing here with the testimony of a doctor as an expert, where, as such expert, it is necessary for him to examine into the case and apply his skill and knowledge to form an opinion, or to make preliminary preparation for the purpose of qualifying himself to give expert testimony, or answer, perhaps, hypothetical questions. That was not the case here, but there was involved merely the conventional relation of physician and patient, and we do not commit ourselves beyond that relationship. This matter of a physician being ordinarily subject to testify under subpoena as any other witness has heretofore been before this Court.
Section 1747, Code 1892, is brought forward into Section 1699, Code 1942. Both statutes provide for the taking of depositions, under various circumstances, among them being: "When the person whose testimony is required shall be about to depart from the state, or, by reason of age, sickness, or other cause, shall be unable, or likely to be unable to attend the court." In the case of American Express Company v. Bradford, 82 Miss. 130, 33 So. 843, this Court said; "We think the motion to suppress the deposition of Dr. Harrison should have been sustained, for insufficiency of the affidavit required by Code 1892, Section 1747. That one is a physician in large practice, `and that it is likely that the said witness will be unable to attend trial,' etc., does not, in our opinion, bring the instance within the category meant by the words `or other causes', in clause 1 of that statute." We, of course, are not in a position on the record before us to decide whether appellee can require the deposition of his doctor under another provision of the statute. At any rate, his excuse for offering the hearsay testimony, instead of having process to procure the doctor's presence, is not tenable. The judgment of the trial court must be reversed for this error.
Therefore, the judgment of the trial court is affirmed on the merits as to liability, but reversed as to the amount of damages, and remanded for a new trial as to that feature of the case.
Affirmed in part, reversed in part, and remanded.