The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-01-17
Decisions of the Supreme Court

State of North Dakota, in supreme
court.
Annie Booren, plaintiff and respond
ent, VS.. George E. McWilliams. defend
ant 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, on the occasion of
a visit to her subsequent to her con-
finement, which conversation, If testi-
fed TO-, would show statements Of
plaintiff in direct conflict with her
claims in this litigation. During the
proceedings to determine whether the
testimony of the doctor was privileged
under the statute, the court, in ad-
dressing counsel, said in part: IF a
nan can act as a doctor just as has
| been testified to here, if he can act as
a doctor and make a 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 case
of this kind, he can go out and separ-
ate his visits into two calls. He can
make the call professionally and act
as {. detective right straight through.
| We lave a good and wholesome stat
ute on that, and if this kind Of bust
ness can prevail. there is nothing in
in it and it is wiped out and torn to
pieces" The offer of proof which
called forth this declaration was to
show statements made by plaintiff,
when it was claimed the witness was
not attending her in a professional
capacity. 1t is held under these facts
and all the surrounding circumstance
es, that this statement by the court
as unwarranted, and in a case where
the evidence of the parties as to the
direct issues was practically uncorro-
| borated and in direct conflict and a
| slight thing might influence the YER
dict, was prejudicial.
2. Many minor errors disclosed in
| the record, all unfavorable to the de-
PENDANT, considered in connection with
the whole record, indicate that he did
| not have a fair trial.
3. Sec. 1904 r. c. 1905 prohibits a.
| physician being examined as a wit
, ness. without the consent of his pa
| tient. 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
age him to make a full disclosure to
the physician of his symptoms and
condition, by protecting against ply
sicians making known to the curious
the ailments Of their patients, partic-
ularly when affected with diseases
which might bring ~reproach, criticism,
unfriendly comment or disgrace upon
the patient, If known to exist.
A. When a party to litigation seeks
to exclude the testimony of a physi-
clan on the ground that it Is privileg-
ed under the above statute, the bur-
den Is upon such party to bring OF
show the evidence to be within the
terms Of the statute granting the priv
ilege. >. 5# Vs.
5. TIE question Of the privileged
character Of the testimony is for the
court. taking into consideration al
the circumstances, and, if necessary
the opinion of the physician and the
belief Of the patient.
6. Two facts must combine to rem
der the testimony of a physician priv
ileged under the provisions Of Sec
1904 r. C. 1905, namely, he must havt
acquired the information while at
tending the patient in his profession.
al capacity, and the information mus
also have been necessary to enable
him to prescribe or act for the patient
Held, under the facts of this case, tina
the testimony sought to be ELECTED
from the physician was not privileged
as it is clear that the questions die
not call for information necessary t.
enable the physician to prescribe O
act for her.
II 7. An offer was made to prove tina
the physician who attended plaintiff
during confinement, on a %subsequen
visit to her, was told by plaintiff tina
she did not have intercourse with de
PENDANT. until after the 4th Of July
or about 6R months prior to the brit
Of a child, that she never had an
talk with defendant about marriage
and that the reason she let him hav
intercourse with her was that sh
thought, il she became pregnant, h
would marry her. Held, that. unde
the circumstances surrounding the Wis
1t, it is apparent that such inforna
II tion, if given the physician, was nc
necessary to enable him to ~pTescrib
or act for the plaintiff, and that there
fore it was not privileged under TIL
statute.
5. In an action for breach OF prom
.slise Of marriage, in which seduction