Lissak v. Crocker Estate Co.

California Supreme Court Dec 29, 1897 No. S. F. No. 589Published

Before: Harrison

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Holding. The court held that the trial court erred by admitting hearsay testimony regarding an elevator operator's post-accident statements and by striking a physician's testimony after the plaintiff had waived the physician-patient privilege by failing to object to the initial examination.

Issues

Whether post-accident statements by an employee are admissible as part of the res gestae.
Whether a patient waives the physician-patient privilege by failing to object to the physician's testimony at the time it is given.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The privilege given by the statute is personal to the patient, and may be waived by him. It is waived when he calls the physician himself as a witness, or when he permits him to give his testimony without making any objection thereto.”

Synopsis

Negligence—Fall oe Elevator—Evidence—Declarations of Person in Charge—Res Gestae—Narrative of Past Occurrence—Prejudicial Error—Estoppel of Plaintiff—Appeal.—In an action for an injury received from the fall of an elevator, owing to the alleged negligence of the defendant, evidence of a conversation had by plaintiff with the person in charge of the elevator after it had stopped in its fall, in which in response to a question as to what had happened he declared that “he lost all control, and the connection cord got broke,” is incompetent, the declaration being in its nature a narrative of a past occurrence, and no part of the res gestee, and such incompetent evidence, being of a character to charge the defendant with negligence, must be deemed prejudicial; nor can the plaintiff, after insisting upon the admission of the evidence over an objection to its admissibility, be permitted to defend his course by contending, upon appeal of the defendant, that the error was harmless.

Id.—Testimony of Physician—Waivek of Objection—Implied Consent of Patient—Erroneous Order Striking Out.—Where the plaintiff had testified that, after the fall of the elevator he was taken to the office of a physician, and gave testimony respecting the examination and treatment given him by such physician, and the physician was called for the defense and testified, without objection of plaintiff, respecting his examination of plaintiff and the remedies used, and the nature of his injuries, the failure of plaintiff to object thereto was a waiver of objection, and an implied consent to the evidence, which could not be revoked, and it was error for the court, upon plaintiff’s objection to further evidence of the witness, upon the ground that he was disqualified, to strike out the evidence previously given by the physician, and to instruct the jury to disregard it.

Review upon Appeal—Amendable Objection to Complaint—Reversal— New Trial.—Where the judgment is reversed and the cause remanded for a new trial, it is unnecessary to review and pass upon an objection to the complaint which may be obviated by amendment.

HARRISON, J. The plaintiff recovered a verdict against the defendant for personal injuries sustained by the fall of an elevator in which he was at the time a passenger. From the judgment thereon and an order denying a new trial the defendant has appealed. It is alleged in the complaint that the defendant operated and controlled the elevator, and that the same was wholly under its management and control, and was maintained by it for the purpose of carrying passengers to and from the different floors of the defendant’s building; that at the time the injury occurred the plaintiff entered it to be thus carried, and the defendant undertook to transport him from the first to the fourth [444]floor of the building, and that while being so transported the cage of the elevator suddenly fell from about the third floor t» the basement with great and excessive violence and rapidity, whereby the plaintiff sustained injury to the amount of five thousand dollars.

1. At the trial a witness on behalf of the plaintiff was permitted, against the objection of the defendant, to give a conversation which he had had with the man in charge of the elevator. His testimony was: “I asked him what in the world happened. He said he lost all control, and the connection cord got broke.” This conversation was had after the elevator had' stopped in its fall, and after the plaintiff had been taken out of the cage, and formed no part of the res gestae and should have been excluded by the court. It was only a statement of what had occurred, and the defendant was not bound thereby. In Lane v. Bryant, 9 Gray, 245, 69 Am. Dec. 282, the plaintiff was injured in a collision between his carriage and that of the defendant, and a witness was asked what the defendant’s servant said to the plaintiff at the time of the accident, and while the plaintiff was being taken out of the carriage, to which he replied that the servant said that the plaintiff was not to blame. In holding that this evidence was improperly admitted, the court said: “The declaration of the defendant’s servant was incompetent, and should have been rejected. It was made after the accident and the injury to the plaintiff’s carriage had been done. It did not accompany the principal act on which the whole case turned, or tend in any way to elucidate it. It was only the expression of an opinion about a past occurrence and no part of the res gestae. It 13 210 more competent because made immediately after the accident than if made a week or a month afterward.” (See, also, Richstain v. Washington Mills Co., 157 Mass. 538; Beasley v. San Jose Fruit Packing Co., 92 Cal. 388; Fetter on Carriers of Passengers, sec. 454.) It cannot he said that this was an immaterial error. The evidence was incompetent, and, being of a character tending to charge the defendant with negligence, it is impossible to say what effect it may have had upon the jury. A party cannot, after insisting upon the admission of improper evidence over an objection to its admissibility, defend his course by contending that the error was harmless. (Smith v. Westerfield, 88 Cal. 374.)

Lissak v. Crocker Estate Co.

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