The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1914-01-17
WILLIAMS CASE
VERDICT TURNED
Supreme Court Says That
Towner County Man Did
sSuS& .l-.l--t.4.
not Have a Fair Trial.
BREACH OF PROMISE
CAUSE OF ACTION
Annie Booren PlaintiR-Relations Of
Woman and Physician in Matter Of
Confidential ssatements Involved in
The Onse to . Large Extent,
~
(rimes /. Special Service. 4,

(1lNlS0' 0p0Cl6l 0erVlC0.l
Bismarck, N. D.. Jan. 17.-The $780,
900 dollar verdict for breach of prom
Use given in Towner county against
George E. McWilliams in favor of
Annie Booren was today set aside by
the supreme court, which declares
that McWilliams was not accorded a
fair trial.
McWilliams is prominently known
throughout the northern part OF the
state. The reversal sends the case
back to the district court for re-trial.
In part, the supreme court says:
In an action for breach of promise
Of marriage, defendant offered to
show by physician a conversation
with the plaintiff. on the occasion of
a visit to her subsequent to her con-
finement, which conversation, il tes-
titled to, would show statements of
plaintiff in direct conflict with her
claims in this litigation. During the
proceedings to determine whether the
under the statute, the court, in ad-
dressing counsel, said in part: "If a
man can act as a doctor just as has
been testified to here, if he can act
as a. doctor and make call, and then,
when called again, repudiate the pro-
fessional part of it and become some-
thing else. if he can do that in a
separate his visits into two calls. He
can make the call professionally and
act as detective right straight
through. We have good and whole
some statute on that. and If this kind
of business can prevail. there is Moth
ing in it and 1t is wiped out and torn
to pieces" The offer of proof which
14xr %I,;e
show statements made by plaintiff.
when it was claimed the witness was
not attending her in professional
capacity 1t Is held under these facts
and all the surrounding circumstan-
ces, that this statement by the court
was unwarranted, and in a case where
the evidence of the parties as to the
bOrated and in direct conflict and a
slight thing might influence the ver-
dict, was prejudicial.
Many minor errors disclosed in the
record. all unfavorable to the defend
ant. considered in connection with the
whole record, indicate that he did not
have a fair trial.
Sec. 1904 r. G. 1905 prohibits
physician being examined as n witt
ness. without the consent Of his pa
tient. as to any information acquired
III dIlcuUluE tue pdIleut, WHICH was
necessary to enable him to prescribe
or act for the patient Held. that the
object of this statute is to inspire con-
f1dence in the patient and encourage
him to make full disclosure to the
physician Of his symptoms and con-
dition, by protecting against physic-
ians making known to the curious the
ailments Of their patients. particularly
when afflicted with diseases which
might bring reproach, criticism, un.
friendly comment or disgrace upon
the patient, II known to exist.
When a party to litigation seeks to
exclude the testimony Of a physician
on that ground that 1t is privileged
under the above statute, the burden
is upon such party to bring or show
the evidence to be within the terms
Of the statute granting the privilege.
The question Of the privileged char
acter of the testimony is for the
court, taking into consideration all.
the circumstances, and. IL necessary,
the opinion OF the physician and the
belief Of the patient.
Two facts must combine to render
the testimony Of a physician priv
ileged under the provisions Of Sec.
acquired the Information while at
the patient in his professional
capacity. and the Information must
also have been necessary to enable
him to prescribe or act for the pa
tienE Held. under the facts OF this
case, that the testimony sought to be
ELECTED from the physician was not
as It is clear that the ques-
tions did not call for information
necessary to BILE the physician to
prascribe OF act for her.