#### Green, Respondent, vs. Town of Nebagamain, Appellant.

*February 20*—

March *11, 1902.*

*Highways: Defects: Notice: Personal injuries: Negligence: "Witnesses: Physicians and, surgeons: Privileged communications: Statutes: Instructions to jury: Excessive damages.*

1. Where it appears that a defect in a bridge was the result of natural rot and decay, long use, the duty of inspection from time to time and the duty to repair when necessary are implied.

*5092. A failure to perform such duty is negligence, and the municipality cannot escape liability therefor because its officers did not have notice of the precise defect which caused the accident.

3. Under sec. 4075, Stats. 1898, providing that no physician shall be compelled to disclose any information acquired in his professional capacity, which was necessary to enable him to prescribe for a patient, it is not error to refuse to allow the physician, who attended plaintiff during the eleven days immediately after an injury, to testify as to her condition and symptoms as disclosed by his examination and observation, even though plaintiff had testified in her own behalf in respect thereto.

4. Where a physician, while' attending a patient, calls in another physician, who was present at the examination of the patient, but took no part therein, and did not prescribe, such visiting physician is, *pro hac vice,*an attending physician, and hence precluded from disclosing any information thus acquired against the objection of the patient.

5. Sec. 1339, Stats. 1898, as amended by ch. 305, Laws of 1899, provides that no action shall be maintained by a husband on account of injuries received by a wife, but gives no right of action to the wife for loss of her services or expenses incurred. In an action for personal injuries to a married woman, sustained by reason of a defective highway, it was *held*that a verdict is excessive, where, by the instructions given, the jury were left to infer that they were at liberty to allow the wife damages for the loss of her services and the expenses of her sickness, and they have evidently done so.

Appeal from a judgment of tbe superior court of Douglas county: Chas. Smith, Judge.

*Reversed.*

Tbis action was commenced April 30, 1900, to recover damages for personal injuries sustained by tbe plaintiff November 22, 1899, by reason of a defect in tbe public highway. It appears that tbe plaintiff resided upon tbe highway in question, which ran east and west; that about one mile east from her home there was a public highway, running north' and south; that about two miles south of that corner there was a place called “Solon Springs;” that about thirty-five rods west of the point where the road so turned there was a bridge or culvert over a small stream of water, built of poles laid on stringers about three feet above the water; that, about *510one o’clock on the day named, the plaintiff started alone from her home with a lumber wagon drawn by two horses, for Solon Springs. In addition to the requisite statutory notices, the complaint, as amended, alleges, among other things, in effect, that the poles and stringers of the culvert had become old and rotten, and some broken; that, by reason of the rotten and broken condition of the bridge, when the plaintiff had driven along the highway to the point of insufficiency in the bridge or culvert mentioned, and while the horses were upon the bridge, the poles alongside of the hole mentioned broke under the horses’ feet and fell to the bottom of the creek; that because thereof the horses thereupon struggled and plunged forward out of the hole, and immediately thereafter the front wheels of the wagon in which the plaintiff was riding were suddenly drawn into the hole caused in the bridge by the broken poles, and fell about three feet, whereby the plaintiff was thrown violently upon the edge of the wagon box and then out upon the ground, under the feet of the horses, and suffered á fracture of two of her ribs, and was otherwise greatly injured about the body and limbs, and suffered a severe shock to her nervous system, and received other severe and painful injuries to her person.

The defendant answered by way of denials and admissions, and, among other things, to the effect that at the time of the accident there was a hole in the bridge or culvert mentioned, but that it had not existed to exceed two days prior to the accident, and that the defendant’s officers had no notice or knowledge thereof.

At the close of the trial the jury returned a special verdict to the effect (1) that November 22, 1899, the plaintiff was injured by the breaking down of a bridge in a highway in defendant town at the point described in the complaint and notice mentioned; (2) that said highway at that point was defective and unsafe for the purpose of public travel by reason of the condition of said bridge; (2-J) that the defective *511and unsafe condition was such that it would have "been discovered by the officers of the town having highways in charge, had they exercised reasonable and ordinary care; (3) and such defective condition had existed for such length of time that such officers wonld have discovered and remedied the defect before the accident, had they exercised reasonable and ordinary care; (4) that such defective and unsafe condition of the highway was the proximate canse of the injury complained of; (5) that the plaintiff was not chargeable, under all the circumstances of the case, with want of ordinary care that contributed proximately to cause the injury complained of; (6) that $1,350 would compensate the plaintiff for the injuries she received. Erom the judgment entered thereon in favor of the plaintiff for the amount stated, the defendant brings this appeal.

Eor the appellant there was a brief by *Garl M. Wilson,*attorney, and *W. M. Steele,*of counsel, and oral argument by *Mr. Steele.*

Eor the respondent there was a brief by *Grownhari & Foley*and *Geo. G. Cooper,*and oral argument by *O. S. Grownhart.*

Cassoday, C. J.

1.' It is contended that the evidence is insufficient to sustain findings of the jury Eos. 2-J and 3, to the effect that the officers of the town failed to exercise reasonable and ordinary care in discovering and remedying the defect in the bridge or culvert before the accident. There is plenty of evidence that the defect was the result of natural rot and decay. That implies long use, and the duty of inspection from time to time to repair when necessary. A failure to perform such duty is negligence on the part of those charged with the duty. In such a case the municipality cannot escape liability because its officers did not have actual notice of the precise defect which was the cause of the accident. Spe*arbracker v. Larrabee,*64 Wis. 573; *Paine v.*
      *512
      *Eastern R. Co.*91 Wis. 346, 347; *Grimm v. Washburn,*100 Wis. 229; *McHugh v.*Minocqua, 102 Wis. 291; *Mauch v.*Hartford, 111 Wis. 40.

2. Error is assigned because tbe court refused to allow the defendant to prove by Dr. James, who attended the plaintiff as her physician during the eleven days she was at Solon Springs, and once after she went home, three or four weeks afterwards, against the objection of the plaintiff, as to whether he found, from his examination of the plaintiff, any bones broken, or any fractures, bruises, swellings, dislocations, or indications of injury, and whether the plaintiff was able to retain medicine and nourishment on her stomach, or vomited or spit blood, or whether her bowels moved the second day after the injury. The information thus sought to be elicited was manifestly necessary to enable the witness to prescribe for the plaintiff as her physician; and hence, under the statute, he could not be compelled to disclose any such information which he may have acquired in so attending the plaintiff in a professional character. Sec. 4075, Stats. 1898. This court has expressly held that “the object of [that statute] was to protect the patient, and, construing that section according to its spirit and intention, a physician can neither be compelled nor allowed to disclose such information in court without the consent of the patient.” *Boyle v. N. W. M. R. Asso.*95 Wis. 312, 322, 323. Mr. Justice Pinney there said:

> “For whose benefit was this provision intended ? Clearly, for the benefit of the patient, whose interests, reputation, and sensibilities may be injured and grossly outraged by its disclosure. . . . The object of the section, therefore, was to protect the patient, to whom protection was so important, and not the physician, to whom it was quite unimportant, from the consequences of such disclosure.”

Such ruling has frequently been followed since. *Bryant v.*Pierce, 95 Wis. 341; *Kenyon v.*Mondovi, 98 Wis. 53; *In re Bruendl's*Will, 102 Wis. 47; *McGowan v. Supreme Court*
      *513
      *I. O. F.*104 Wis. 173, 186; *Shafer v. Eau,*Claire, 105 Wis. 244. Counsel contends that, because tbe plaintiff testified in ber own bebalf as to ber condition while sbe was so attended by Dr. James, sbe bad thereby waived ber right to exclude Dr. James from testifying on tbe samé subject. If such a rule were to prevail, it would destroy tbe privilege secured by tbe statute, or preclude tbe patient from testifying in ber own bebalf. There may be adjudications in other jurisdictions, under different or even similar statutes, bold-ing otherwise, but, if so, we decline to follow them.

3. Error is assigned because tbe court refused to set aside tbe verdict and grant a new trial on tbe ground of newly discovered evidence, in tbe person of one Dr. Short, who was a physician and bad practiced medicine at Solon Springs prior to tbe accident, and bad acted as tbe plaintiff’s physician, but who bad, two days before tbe accident, sold out bis business to Dr. James, with tbe view of moving away from there, and who did soon thereafter move away from there, and who bad acquired certain information in respect to tbe condition of tbe plaintiff five days after tbe accident, under tbe following circumstances: A Dr. Quinn, of tbe city of Superior, was called to Solon Springs five days after tbe accident to treat tbe plaintiff for tbe injuries sbe bad so received, in a professional capacity, as physician and surgeon, and made an examination of ber, and prescribed for and treated ber as bis patient. On reaching Solon Springs, be called on Dr. Short, and requested Dr. Short to accompany him upon bis proposed examination of tbe plaintiff. In compliance with such request, Dr. Short did so, and thereupon they both went to tbe bouse where tbe plaintiff was stopping; and Dr. Quinn, in tbe presence of Dr. Short, who was thus called in as another physician, made an examination of tbe plaintiff, and prescribed treatment for ber as ber physician, and Dr. Short made no examination, and did not remain at tbe bouse *514after Dr. Quinn left. In view of wbat bas been said in regard to excluding tbe testimony of Dr. James, it is very obvious tbat, bad Dr. Quinn been offered as a witness on tbe part of tbe defendant, bis testimony as to wbat be learned upon sucb examination might bave been properly excluded upon tbe same theory. Tbe same is true in respect to tbe proposed testimony of Dr. Short. He bad “been called in as another physician” by Dr. Quinn, an attending physician. We must bold tbat Dr. Short was, *pro hac*vice, an attending physician, and hence precluded from disclosing any information thus acquired, against tbe objection of tbe plaintiff.

4. It is claimed tbat a new trial should bave been granted because tbe damages are excessive. Tbe plaintiff testified to tbe effect tbat she remained at Solon Springs eleven days;-tbat when she first got there she was suffering so much she could not tell where she was hurt most; that she bad always felt pain on her side and ribs; tbat there did not seem to be any external injury tbat she could observe; that she bad a continual flowing and vomiting, which tbe doctor could not stop; tbat her bowels did not move for nine days; tbat she bad bleeding at tbe lungs; tbat after she got home tbe pain continued most all tbe time day and night; tbat she was confined to her bed about six weeks, and then was able to be around, but was taken worse, and went to Superior for treatment by a doctor there from January 16, 1900, to May 17, 1900, — under tbe care of a doctor all tbe time; tbat prior to the injury her health was good, and she did tbe general work tbat a man would do on tbe farm; tbat her husband was not able to work, and tbat she bad not been since tbe injury; and tbat she was thirty-two years old. Tbe court charged tbe jury on tbe question of damages as follows:

> “You should assess sucb sum as, in your judgment, will fairly compensate her for wbat she bas suffered in physical pain and discomfort. So far as she bas been incapacitated *515to work by reason of the accident, or there has been expense incurred for medical attendance, they are matters concerning her husband, for which he may complain if he sees fit.”

And then he added:

> “So far, gentlemen, as the court intimated that the husband would have a course to pursue for loss of her services, and for his expense in medical attendance, — so fax as the ■court intimated that, — the court retracts it, as not being present law.”

Such explanatory statement left the jury to infer that they were at liberty to allow the plaintiff damages for her loss of services and the expenses of her sickness. Damages for such loss of services and expenses were formerly recoverable by the husband, and not by the wife. *Hunt v. Winfield,*36 Wis. 154. The statute of 1881 took from the husband all right to or control over an action for any injury to his wife’s person or character, and all right to or interest in any judgment recovered'therein. *Shanahan v. Madison,*57 Wis. 276; *Selleck v. Janesville,*104 Wis. 570, 576; *McKeague v. Green Bay,*106 Wis. 577. The “present law” mentioned by the trial judge in his explanation quoted manifestly referred 'to the recent amendment, which provides “that no action shall be maintained by a husband on account ■of injuries received by the wife.” Sec. 1339, as amended by ch. 305, Laws of 1899. But that statute did not give the wife any right of action for such loss of services or expenses. Under the explanatory charge quoted, the jury were likely to include, and' probably did include, in their verdict, •damages for such loss of services and expenses. We must hold that the damages are excessive. The plaintiff should not be allowed to recover more than $1,000.

*By the Court.*— The judgment of the superior court is reversed, and the cause is remanded for a new trial, but with the option on the part of the plaintiff, to be exercised within thirty days after the *remittitur*from this court is filed in the trial court, to remit, in writing, from the verdict, all *516damages in. excess of $1,000, and file sucb remission witb tbe clerk uf tbe trial court, in wbicb event judgment is to be-entered tbereon for tbe plaintiff for $1,000 damages, and tbe costs and disbursements in tbe superior court.