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care was observed, the running of the car must be viewed in the light of the “exigencies of the situation.” Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450. [9] It is unnecessary to notice the other questions relating to whether the car actually struck plaintiff or not, whether her alleged injuries were simulated, or whether, if real, they arose from another cause. Clearly they are questions to be settled by a jury. The fact that plaintiff may have said at the time that she was not hurt, and later told defendant that she had no grievance against him, is not conclusive against her. She did not in express terms deny that she said these things, but she testified that the automobile struck and injured her, which was, in effect, a denial of the charge that she had no claim against defendant. The fact that she may have said these things is no more than a circumstance to be considered by the jury in Weighing her case. Inasmuch as defendant's contention that plaintiff cannot be allowed to recover in any event is untenable, the action of the trial court in granting her a new trial for error committed against her and in defendant's faVOr is affirmed. All concur.

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2. STREET RAILROADS. Ç:2103—PERSONAL INJURY-NEGLIGENCE—LAST CLEAR CHANCE. In such action, the fact that plaintiff committed an error of judgment prompted by fear of imminent injury did not absolve defendant's motorman, who should have realized her peril in the exercise of his duty under the humanitarian rule of exercising reasonable care to avoid injury, as it then became his duty to make the saving effort regardless of whether she had been negligent in becoming imperiled or had acted with the best judgment in trying to escape. [Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. Q:103.] 3. EVIDENCE 6:506—FACT OR CONCLUSIONPROVINCE OF JURY. In an action against a street railroad for personal injury from a collision, an offer of the facts which an expert medical witness had discovered on his examination, and his admissible opinions as an expert, was not objectionable as invading the province of the jury. [Ed._Note.—For other_cases, see Evidence, Cent. Dig. § 2309; Dec. Dig. 3:506.]

4. WITNESSES @->219–PRIVILEGED COMMUNICATION-PHYSICIAN-WAIVER, Plaintiff in an action against a street railroad for personal injury from a collision, who introduced her family physician who had been call

ed to examine and treat her on the second day after her injury to testify fully as to the conditions which might be attributed to the injury, and who, on the day before, had allowed a practicing physician brought by a friend who was engaged in following injury suits, to make an examination of her as a patient, and to whom she disclosed all the secrets as to the consequences of her injury, thereby waived her right to exclude the latter's testimony as a privileged communication to a physician, within Rev. St. 1909, § 6362. [Ed. Note.—For other cases, see Witnesses, # Dig. §§ 769, 781, 782; Dec. Dig. G->

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Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Mary E. Herman Michaels against Ford F. Harvey and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John H. Lucas, of Kansas City, for appellants. Piatt & Marks, of Kansas City, for respondent.

JOHNSON, J. Plaintiffs sued the receivers of the Metropolitan Street Railway Company to recover damages for personal injuries she sustained in a collision between a Wagon in Which she was riding and an electric street car operated by defendants on Walnut Street between Fourth and Fifth Streets in Kansas City. The petition alleges that negligence in the Operation of the car was the proximate cause of the injury, and Specifies both negligence to Which contributory negligence Would be a defense (i. e., running the car at excessive speed and failing to give warning of the approach of the car), and negligence under the humanitarian rule; but the only issues submitted to the jury related to the latter Specification, and there is no evidence in the record tending to show excessive speed, or that the failure to give warning (if none was given) was the proximate cause of the injury. The trial resulted in a verdict and judgment for plaintiff in the sum of $3,650, and defendants appealed.

The injury occurred in the morning of April 11, 1912, at a point on Walnut street Opposite the city market house and South of Fourth street. Plaintiff, who was 18 years old, and her mother, were driving south on Walnut Street in a One-horse market Wagon.

Plaintiff was seated on the right Side doing the driving. The horse was large and heavy, weighing 1,700 or 1,800 pounds, and the load in the Wagon consisted of only 6 or 8 empty lettuce boxes. The distance betWeen the Car track and the West curb line approximately was 30 feet, but many market wagons with their teams attached were backed up to the curb, and the clear space between the horses heads and passing cars was about 8 feet. There was a row of commission and produce houses on the east side of the street, and the clear space on that side between the car track and standing teams was less. The street at that time and place Was the Scene of great activity, and the portion occupied by the car track was required and much used as a passageway by vehicles of all sorts. Plaintiff drove her horse in an ordinary walk, and, after passing Fourth street, was compelled to turn onto the track to pass around an automobile which blocked the paSSageWay on the west side. Passing this obstruction, she attempted to drive from the track back into this passageway, but there Was a groove or flangeway in the rail into which the left front wheel dropped (the tires of the Wagon wheels being Only an inch and a quarter wide), and, instead of the wheel crossing the rail, it remained in the groove and Slid along the rail. Forty or 50 feet south of the automobile a large transfer wagon was being backed across the track to the West Curb, and just behind that Wagon Was a northbound street car which advanced at a Speed of 5 or 6 miles per hour as Soon as the track WaS Clear. [1] Plaintiff and her mother state they SaW the Car When the transfer Wagon backed out of the Way, and, observing that it WaS approaching, both screamed in fright, and plaintiff tried to turn her horse far enough towards the West to pull the Wheel Out of the groove, but lack of Sufficient Space CauSed this effort to fail. The predicament the WOmen were in was observed by eyewitnesses and should have been plainly apparent to the motorman when the car was 35 or 40 feet from the horse. There is evidence that he was not looking and made no effort to stop or reduce speed until the car collided with the horse and Wagon, and that the car pushed them back a distance of 28 feet before it was stopped. There is proof that, under the conditions disclosed by the evidence of plaintiff, the motorman had abundant time to avoid the collision by stopping the car after he should have discovered the perilous situation of the two Women. The Wagon Was Overturned, and plaintiff was thrown to the cobblestone pavement and injured. These are the principal facts disclosed by the evidence of plaintiff, and We think they Warranted the trial court in refusing the request of defendants for a peremptory instruction. Great stress is laid by counsel for defendants upon the act of plaintiff in driving for Ward after She discovered the car and the danger of a collision. We are cited to the

following cases as authority sustaining the contention that, since plaintiff obviously was aWare of the approach of the car, the motorman Was not bound to anticipate that she Would drive on and collide with the car, and that the Same obligation rested upon her as upon the motorman to avoid the collision, which she could have avoided by stopping her horse. Kinlen V. Railway, 216 Mo. 145, 115 S. W. 523; Pope V. Railroad, 242 Mo. 232, 146 S. W. 790; Hebeler v. Railway, 132 Mo. App. 551, 112 S. W. 34; Barnard v. Railway, 137 Mo. App. 684, 119 S. W. 458. If this were a Case Where it Was apparent to the motorman that the driver of a vehicle approaching on the track not only Was aware of the presence of the car he was meeting, but was in a position to avoid a collision by driving from the track, he would apply the principle of the Cited cases and hold that the motorman was under no duty to anticipate that such driver, either willfully or negligently, would remain upon the track until his position of safety had merged into One of danger, but this is not that kind of case. Here the plaintiff disclosed knowledge of the danger and was try. ing energetically and even frantically to eSCape at a time When the motorman, if he had been looking, Would have discovered she was in a dangerOuS trap, from Which She could not extricate herself and by the exercise of ordinary care could have saved her by stopping the car. There is abundant room in the evidence for the inference that she could not have saved herself by stopping the wagon, and it is apparent She pursued the only sensible course Open to her, Since She could not turn to the left for lack of room, and her only chance to escape was by turning the horse to the right as far as She could, to pull the wheel out of the groove and Over the rail, if possible. [2] But if, in this attempt which was prompted by fear of imminent injury, she committed an error of judgment, this did not absolve the motorman, who should have realized her peril, from the duty, under the humanitarian rule, of exercising reasonable care to avoid running her down and injuring her. Her evidence depicts her as being in obvious danger from which she could not save herself and the motorman as having a fair opportunity to save her by the exercise of reasonable care. In such circumstances, it became his duty to make the saving effort regardless of whether or not she had been negligent in becoming imperiled, or was acting With the best judgment in trying to escape. For a negligent breach of such duty towards plaintiff defendants Would be liable for the resultant damages. The demurrer to the evidence properly was overruled. From the evidence of plaintiff it appears that the injuries she sustained were severe, painful, and permanent. She was unmarried and lived with her parents who were gardeners of Belgian nativity. She had always been Vigorous and healthy and had been doing the Work of a farm laborer. She testified: “I could do most anything, lift a bushel of potatoes or get stuff in the garden and wheel the wheelbarrow with 200 or 300 pounds on there, and I could lift a bushel and a half or two bushels of potatoes on the side of the wagon and put them on the wagon.” Her testimony relating to her condition Since the injury goes into the subject of its consequences With complete thoroughness, laying bare resultS Of the most Secret and delicate nature. She received a blow on the back that left a permanent soreness and tenderneSS along the Spinal Column and reSulted in numerous manifestations of Severe nervous shock. She cannot sleep Well and wakes screaming from frightful dreams. Her appetite is gone, and She iS SO Weak She can do none but the lightest Work. She is nervous and apprehensive and for SOme time WaS afflicted With melancholia and had to be watched to prevent her from attempting Selfdestruction. Her menstruation became irregular and WaS accompanied With great pain. She was married in September, 1912, and in the following June gave birth to a puny, undersized baby. Dr. White, her family physician, introduced by her as a Witness, testified to these conditions, and in addition found that One of her kidneys had been displaced and had become What is known as a “floating kidney.” He was called to examine and treat her the second day after her injury, and his direct testimony omits no detail of the conditions Which may be attributable to the injury. A specialist in nervous and mental diseases Who, at the request of plaintiff, examined her in August, 1912, testified: “I examined her physically. She presented no paralysis of the limbs, trunk, motor, or sensor, but she presented a painful condition of the spinal column between the shoulders and accentuated in the middle of the back and along the left side of the spinal column over the left kidney region. She was very nervous, agitated. She had a weak, rapid pulse; her reflexes were all exaggerated, that is, the muscular responses, throwing the muscles into certain activities, were irritably active, showing exhausted, irritable condition of the central nervous system. Mentally she was very much agitated, rather frenzied, sad, despondent, depressed condition, so far as I could see Without cause outside of herself. She lost all interest in everything, nothing interested her,” etc. He diagnosed her nervous malady as melancholia, produced by a Severe nervous shock. The day following the injury and preceding the day Dr. White was called in to treat plaintiff, Dr. McCall, a practicing physician called at her home in Company With a Mr. Counties, and, without objection, was allowed to make an examination of her. He states that he made the Visit at the request of Counties, but thought he Was Summoned at the patient's request and made the examination as her physician for the purpose of treating her. Plaintiff testified that Counties (who appears to have been a hunter of damage Suits knoWn in COmmon parlance aS

“a Snitch”) was “a friend of ours” and, as a friend, Called and brought Dr. McCall With him. She denied that either she or any one authorized by her had authorized Counties to employ a doctor, but She accepted his Services on that occasion, and We think the evidence sufficiently discloses that the confidential relation of physician and patient WaS established and existed between McCall and plaintiff during that examination. The relationship Was not continued after that day, Dr. White being called in immediately after, nor did Counties succeed in obtaining employment to bring suit for damages for plaintiff. Defendants offered Dr. McCall as a Witness to testify concerning the results of his examination of plaintiff, but the court SuStained the objection that he was incompetent to testify under section 6362, R. S. 1909, Which proVides that a physician Shall be inCompetent to testify “concerning any information which he may have acquired from any patient while attending him in a profesSional character, and which information was necessary to enable him to prescribe for such patient as a physician.” Counsel for defendants then Offered: “To show by this witness that he made a thorough examination of plaintiff, of her entire body, and examined the plaintiff in response to all complaints made by her, and will testify that there was no evidence of injury, either internally or externally, and that from the examination of plaintiff by the witness she sustained no injury by her fall except an injury to the right leg and a small bruise on the hip, both of which were of no consequence whatever.” The offer was objected to on the grounds “that the testimony offered is of a privileged Character in the testimony of a physician, and it also invades the province of the jury,” and the objection was sustained. We are asked to review these rulings and to hold that they Constituted prejudicial error for the reason that plaintiff had waived the privilege Of a patient VouchSafed by the Statute and had Opened Wide the dOOr to a full and complete judicial inquiry into the Subject Of her injuries and their Conse QuenCeS. [3,4] There is no merit in the objection that the offer of proof, if allowed, would have invaded the province of the jury. This Was an expert Witness, and the manifest, and we think clearly expressed, purpose of the offer Was to elicit testimony of the facts he had discovered on his examination and his admissible opinions as an expert. The fact that the examination Occurred during the existence of a confidential relationship between the witness and the plaintiff is esSential to the Creation Of the privilege inVoked by her under the Statute, and, regarding that fact as established, the resultant privilege must be conceded, and the only question for our solution is whether or not it Was Waived by plaintiff When by her OWn testimony and that of her other physicians She disclosed all Secrets concerning the conSequences to her of the physical injury she received at the hands of defendants. At common law there was no privilege as to communications between physician and patient, and the beneficent purpose of our Statute granting Such privilege is to protect those Who from Shame or sensitiveness might be deterred from employing the aid of phySicialls and thereby Suffer Serious Consequences. “If the patient is suffering from a malady, the physician should not be allowed to first bring to light that affliction of the patient.” State V. Long, 257 MO. loc. cit. 221, 165 S. W. 755. But in the dissenting opinion of Judge Lamm in Smart V. Kansas City, 208 Mo. loc. cit. 207, 105 S. W. 709, 14 L. R. A. (N. S.) 565, 123 Am. St. Rep. 415, 13 Ann. Cas. 932, and in the later decisions of the Supreme Court in Epstein V. Railroad, 250 Mo. 1, 156 S. W. 699, 48 L. R. A. (N.S.) 394, Ann. Cas. 1915A, 423, and State V. Long, supra, the Sensible rule is adopted and applied that When the patient, for purposes of gain or advantage to himself, discloses in evidence the nature and Secrets of his malady, he renounces his Statutory privilege so far as that action is concerned and opens the door to a full judicial inquiry into the subject-matter of his own importation into the case. As is well said in State V. Long, 257 Mo. loc. cit. 221, 165 S. W. 755:

“The very purpose of the statute is to hide, as with a veil, the malady and trouble for which the physician treated her, and what may have passed between them in the confidential relationship of physician and patient. But when the veil has been lifted by the patient or with her consent, and the secrets of the sick chamber given to the world, what logic is there in saying that the patient can clog the wheels of justice itself, by closing the mouth of other physicians, who know the real facts. In other words, if the patient raises, or permits to be raised, the veil of secrecy with lying lips as to what the conditions were, should this waiver of secrecy still leave to her the power of suppressing the truth, by objecting to other physicians who about the same time treated her for the same identical alleged trouble? We think not. In other words, if a patient is suffering from a given malady, and is treated by several physicians near the same time, for the said same trouble or malady, then, if she and one of her physicians with her consent make public the character of her trouble, she has waived the right to longer keep the exact character of that trouble further secret, and the other physicians are competent to testify as to what this malady or trouble was in reality.”

It is immaterial that Dr. McCall and Dr. White Were not employed at the same time but examined plaintiff on different days. “If the several physicians treat for the Same trouble (as is the case here), then it can make no difference that their treatment Was at different dates.” State V. Long, 257 MO. loc. cit. 217, 165 S. W. 754. The subjectmatter of the two examinations being the same, the waiver of the privilege as to one Waived it as to the Other. The Court erred in ruling that the privilege was not waived.

[5] We do not think the refusal to allow

Dr. luen to testify was erroneous. He was the regular physician of defendants, was not employed by plaintiff, and states that he was Suffered to make an examination of her purSuant to an attempt to compromise or settle her claim against defendants. To permit him to disclose the knowledge of her condition obtained in this manner would be violative Of the rules designed to encourage the COmpromise and settlement out of court of disputed claims and rightS. Objections urged against the rulings of the court on instructions have been carefully examined and are found to be without merit. The case was tried without prejudicial error, except in the matter we have noted, and for that error the judgment is reversed, and the cause remarrded. All concur.


(Kansas City Court of Appeals. Nov. 1, 1915.)

1. DIvoRCE 6:285-APPEAL—RECORDS—SUFFICIENCY. An appeal from an order denying suit money in a divorce case will be considered, though the bill of exceptions in the principal case was not in the record and the printed abstract had not been prepared, for that is the principal purpose for which suit money is necessary. [Ed. Note.—For other cases, see Divorce, Cent. Dig. § 768; Dec. Dig. (3:285.] 2. DIVORCE S->224–ACTIONS—SUIT MONEY. Since the Married Women's Act gave married women the powers of femes sole, suit money in divorce cases will not be awarded unless the wife has no adequate separate income; but where she is entirely destitute of means she is entitled to a reasonable allowance for suit money to prosecute an appeal from an adverse judgment in a divorce action. [Ed. Note.—For other cases, see Divorce, Cent. Dig. § 646; Dec. Dig. 6-3224.] 3. DIVORCE (3-221—ACTIONs – ORDERs FoR SUIT MONEY. An order allowing or denying suit money to enable wife to prosecute an appeal from an adverse judgment in a divorce suit is entirely independent from the issues in the divorce suit, and the right thereto is in no way dependent on the right to divorce. [Ed. Note—For other cases, see Divorce, Cent. Dig. §§ 642, 643; Dec. Dig. <>221.] 4. DIVORCE &223—ACTIONs—RIGHT To SUIT MONEY. Where the lower court which denied a wife divorce awarded her temporary alimony pending appeal; that order showed that she was also entitled to suit money; it appearing that she was destitute, so the denial of suit money was an abuse of discretion. [Ed. Note.—For other cases, see Divorce, Cent. Dig. § 645; Dec. Dig. 3:223.]

(No. 11565.)


Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

“Not to be officially published.”

Action by Sylvia M. Hall against John W. Hall, in which there Was a judgment dismissing the petition and CrOSS-petition, and plaintiff appealed. From an Order granting alimony pendente lite but denying suit money, plaintiff also appeals. Order reversed and remanded.

G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

House, Manard, Allen & Johnson, of Kan

SaS City, for appellant. Sparrow & Page

and W. S. Gabriel, all of Kansas City, for respondent.

JOHNSON, J. Plaintiff brought suit for divorce alleging indignities which would constitute a statutory ground. Defendant answered and filed a cross-bill praying for a divorce for a Similar cause. At the conClusion Of the trial the court dismissed both petition and cross-petition. Motions for a new trial and in arrest, filed by plaintiff, were heard and overruled, and plaintiff appealed. Before the appeal was allowed, the court heard a motion filed by plaintiff for alimony pendente lite and for suit money to prosecute the appeal, and adjudged that plaintiff recover alimony in the sum of $6 per week “for the Support of plaintiff and her minor child pending appeal,” but overruled the motion for Suit money. The present appeal is prosecuted by plaintiff from the latter order. [1] The bill of exceptions on the motion for alimony and Suit money pending appeal appears in plaintiff’s abstract of the recOrd, and, from the evidence therein which was adduced on the hearing of the motion, it appears beyond question that defendant is permanently employed and is earning $5 per day, and that plaintiff, Who has the custody of their minor child, is working for $7 per week and is entirely destitute of Other means. The bill of exceptions in the main case has not been made up and, of course, is not before us, and it is argued by respondent that we cannot review the ruling of the trial court on the motion for suit money “in the absence of a bill of exceptions, or some record of the Case proper disclosing the facts as they were before the trial court.” If we should sanction this view of the law, the practical result would be to deny the right of appeal in nearly every instance where a destitute Wife loses her divorce Suit in the trial court, Since the principal need for Suit money for an appeal is to furnish the defeated and indigent wife with the means to defray the cost of the bill of exceptions and printed abstract of the record. [2] Formerly the right of the wife to ali. mony pendente lite and suit money was abSolute, and Such allowances Were made as a matter Of course. But, since the enactment Of the married Women Statute Which With respect to property and property rights has given to married women the rights and privileges of a feme Sole, the old rule as to alimony pendente lite and Suit money has given place to the rule that Such allowances Will

necessities demand they should be made. If she possess sufficient means of her own, she must use them in the prosecution or defense Of the action. “Suit money is given only to the wife in need, so that if she has an adequate separate income, it is withheld. Or, if she has sufficient in part the husband must supply the residue.” 2 Bishop on Marriage and Divorce (1891) $978; Rut# v. Rutledge, 177 Mo. App. 469, 119 S. W. Where it appears she is entirely destitute of means, she is entitled to a reasonable allowance for Suit money to prosecute an appeal from an adverse judgment in the trial COurt, and it WOuld be a clear abuse of judicial discretion to deny her such allowance. In such cases the wife is entitled to alimony and Suit money SO long as the litigation continues. State ex rel. V. Seddon, 93 Mo. 520, 6 S. W. 342; Libbe v. Libbe, 166 Mo. App. 240, 148 S. W. 460. [3] And the matter of allowing such alimony and suit money, “although an adjunct of the action of divorce, is an independent proceeding Standing upon its own merits and in no way dependent upon the merits of the issues in the divorce suit, or in any way affected by the final decree upon those merits.” State ex rel. v. Seddon, supra; Dowling V. Dowling, 181 Mo. App. 675, 164 S. W. 643. [4] The finding of the trial court that the wife was the guilty party does not deprive her of her right to an appeal or of her right to the means of prosecuting it and of Sustaining herself during its pendency. Libbe V. Libbe, Supra; Robbins V. Robbins, 138 MO. App. 211, 119 S. W. 1075; Rosenfeld V. Rosenfeld, 63 Mo. App. 411; Adams v. Adams, 49 MO. App. 592. Recognition of this rule is found in the instant judgment on the motion for alimony pendente lite and Suit money. The allowance of alimony pending the appeal for the Support of plaintiff and the child, not Only Was a proper recognition of the rule just stated, but amounted to an adjudication that none of the exceptional reasons for denying suit money referred to in Adams v. Adams, supra (such as a lack of good faith in prosecuting the appeal), exist in the present case, Since Such objections Would apply equally as strong against the allowance of alimony pendente lite as against the allowance of Suit money. That adjudication relieved plaintiff from any duty of bringing up the record in the main case On the present appeal and Vitally distinguishes this Case from that before the St. Louis Court of Appeals in Adams v. Adams, supra, where it was held that, in the absence Of Such record, the appellate court could not know whether the action of the trial court in overruling the motion was not based on the finding, compelled by the evidence adduced at the trial of the Cause on its merits, that the wife was not prosecuting the action and appeal in good faith.

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