Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-01-17
Supreme Court
STATE OF NORTH DAKOTA.
IN SUPREME COURT.


VS.. George Z. McWillia1ns. Defendant
and Appellant. ~
l. In an action for breach Of prom
Use Of marriage. defendant offered to show
by a physician a conversation with the
plaintiff, or the occasion Of a visit to
her subsequent to her confinement. which
conversation, if Testified to, would show
statements OF plaintiff in direct conflict
with her claims in this litigation. Dur
ing the proceedir gs to determine wheth :
or the testimony Of the doctor was priv
LEGGED under the statute, the court, in ad-
dressing counsel, said in part: If a man
can act as a doctor just as has been tes-
titled to here, If lie can act as a doctor
and make q call, me then. When called
again. repudiate the professional part
Of it and become something else, if he
can do that in a case Of this kind, he
can go out n separate his visits into
two calls. He can make the call prof
essionally n actssas a detective right
straight through. We hav a good and
wholesome statute on that. and If this
kind OF business can prevail, there is
nothing i'll it and it. is wiped out and torn
to pieces" The offer q proof which call
cd forth this declaration was to show
statements made by plaintiff. when it
was claimed the witness was not attend
ing her in a professional capacity. 1t is
held under these facts and all the sur.
Observation-Disclosures, that this state.
lnent by the court was unwarranted, and
in a case where the evidence of the par
ties as to the direct issues was prac-
tically uncorrOboratcd and in direct con-
1lict and a slight thing might influence
the verdict, was, prcjudicial. .
?. Many minor errors disclosed in the
record, all unfavorable to the defendant,
considered in connection with the whole
record, indicate that he did not AVE a
fair trial.
5. Sec. 1904 II. C. 1906 prohibits a ply
stefan being examined as a witness, with.
out the consent Of his patient, as to any
information acquired in attending the
patient. which was necessary to enable
him to prescribe or act for the patient.
Held, that the object of this statute is to
inspire confidence in the patient and ell.
courage him to make a full disclosure
to the physician OF his symptoms and
condition, by protecting against physi-
clans making known to the curious the
ailments Of their patients, particularly
when afflicted with diseases. which might
%reproach, criticism, - unfriendly comment
or disgrace upcns,the patient, il known
to exist.
A.. When a @s1aityG To- litigation seeks
to excluds; the testimony OF q physician
OH the ground that it is privileged under
the above statute, the burden is upon
such party to- rihg; or show the evidence
to be within the terms OF the statute
granting the privilege. j.
s. The questioned the privileged char
acter of the testimony is for the court,
taking into consideration all the circum-
stances, and. If 4nccessary, the opinion
Of the physicianTt and the belief of the
patient. ~. ~ eit@
6. Two facts must combine to render
the testimony Of q physician privileged
under the provision OF Sec. 1904 Il. G..
1906, namely, ne must have. acquired the
information while attending the patient
in his professional capacity, and the in
formation must also have been necessary
to enable him to prescribe. or act for the
patient. Held, under the facts of this
SoGSs SiAd iC = SFSSAsnOSlS ~ SoA6HS ~ OC
ELECTED from the physician was not priv.
ileged, as it is clear that the questions
did not call for information necessary
to enable the 1hysician' to prescribe or
act for her. A@sil 2Es
T.. An offer was made to prove that
the physician who attended plaintiff dur.
ing confinement. on a subsequent visit to
her, was told by plaintiff that she did
not have Intercourse with defendant UNI
til after the ith Of July, or about 6 IL
months prior to the, birth of q child, that.
she never had any talk with. defendant
about marriage. and !, that the
reason. she let: him have inter
course with her was that she thought, If
she became pregnant. he would marry
her. Held, that, under the circumstances
surrounding the visit, it is apparent that
such information if given the physician.
was not necessary to enable him to pre-
scribe or act for the plaintiff, and that
therefore it was not privileged under the
statute.
8. In an action for breach Of promise
of marriage, in which seduction is a
proper element in aggravation of damages
the physical suffering occasioned by
the birth of a child resulting from the
seduction may be considered in deter.
mining the damages.
3. An instruction to q jury that it
might take into consideration all the
other facts and circumstances in the
case in assessing damages is too broad;
but in this case canllot be said to have
been prcjudicial.
10. Certain rulings Of the court or
the admission and exclusion of evidence
examined. and held errone9use s.1u.
II. Without setting forth The evidence
on the subject of a contract of marriage;
it is held that the record in this case
discloses sufficient evidence sending to
show an implied agreement, TO marry. to
warrant submitting the issues to the
jury. - ~ -: ~. -:
(sTlabus hy ti,e ..Gsolyt.)
Appear from a:judg1nelt &Qf the Dis
tricts Court Of Tewner County. for plain.
tiff and fr6m, an order denying Il new
trial. Hon. j. Il. cowaIi, j.
REVERSED. Opinion Of the court by
!Spalding, c. j.; Burke and Goss j.. dis
senting.. .G,
r. J. McClory Of Devils Lake, n. D.,
Bangs. Cooley & Hamilton, uf Grand
Forks. N. D., for Appellant.
+. T.. Cuthbert and a. Il. Snlythc,s Of
30 r-,,sI I al, " - VsnI.. q NH,