
    Otto Dittrich v. The City of Detroit.
    
      Municipal corporations — Defective sidewalk — Contributory negligence — Evidence—Privileged communications.
    
    1. While contributory negligence is not to be presumed from knowledge of the existence of a defect in a sidewalk, such knowledge enjoins upon the party possessing it a degree of care commensurate therewith.
    2. Where, in a suit for personal injuries received by falling upon a defective sidewalk, the testimony, if believed, shows that the walk was repaired and placed in a condition reasonably safe for public travel the day before the accident, it cannot be said that a sufficient length of time had elapsed from which notice of the defective condition of the walk could be inferred, nor that the city had had a reasonable time within which to repair the defect.
    8. How. Stat. § 7516, which provides that “no person duly authorized to practice -physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon,” does not disqualify a physician who treated a plaintiff in a negligence case for a prior injury, from which the plaintiff claims he had recovered at the time of the second accident, which is denied by the defendant, from testifying that plaintiff was not discharged from treatment by him, but that he refused to attend further because of the calling of another physician without his consent; the proposed testimony not disclosing any information acquired by tbe witness during his previous attendance, or that was necessary to enable him to prescribe for the plaintiff.* 
    
    Error to Wayne. (Reilly, J.)
    Argued December 13, 1893.
    Decided December 22, 1893.
    Negligence case. Defendant brings error. Reversed. The facts are stated in the opinion.
    
      John J. Speed and T. T. Leete, Jr., for appellant.
    
      John Miner and W. G. Beckwith, for plaintiff.
    
      
       For cases bearing upon the construction of How. Stat. § 7516, which makes certain information acquired by physicians privileged, see: ' ■
      1. Briggs v. Briggs, 20 Mich. 34, 41, holding that the “informa^ tion” referred to in the statute is not confined to communications made by the patient to the physician, but the statute protects with the veil of privilege whatever in order to enable the physician to prescribe was disclosed to any of his senses, and which in any way was brought to his knowledge for that. purpose.
      2. Campau v. North, 39 Mich. 606, 609, holding that it is competent for the attending physician of a plaintiff who sues' to recover for personal injuries, and among them a rupture, caused, as alleged, by blows and other acts of violence received at the hands of the defendant, to testify to the admission of the plaintiff that the rupture complained of was not caused by the defendant, but existed prior to the time of the commission of the alleged acts of violence on his part; it not appearing that the admission, if made, was information necessary to enable the witness to prescribe for the plaintiff as a physician, or to do any act for her as a surgeon.
      3. Scripps v. Foster, 41 Mich. 742, holding that the object of the statute is to prevent the abuse of the confidential relation existing between the physician and his x>atient, and is for the protection of the latter, and where the relation is such that no confidence is reposed there is none to be abused.
      
        4. Railroad, Co. v. Martin, 41 Mich. 667, holding .that the statute does not apply where the patient consents to a disclosure of the information protected by it but for such consent; and Fraser v. Jennison, 42 Mich. 206, 224, holding that the proponents of a will may show by the attending physician the condition of the decedent while under his treatment.
      5. Sullings v. Shakespeare, 46 Mich. 408, 412, holding that a physician hás no right to cause to be published an article describing a surgical operation performed upon a patient, without the approbation of the patient.
      6. Storrs v. Scougale, 48 Mich. 387, 395, holding that every reputable physician must know of the existence of the statute, and that it prescribes a rule which he is not to be allowed to violate, and guards a privilege which does not belong to him, but to his patient, and which continues indefinitely, and can be waived by no one but the patient himself.
      7. Brown v. Insurance Co., 65 Mich. 306, 316, holding that where, in a suit upon a life-insurance policy, it appears that the decedent stated in her application that a certain physician had treated her some years before for typhoid fever, the physician may testify whether or not-he ever treated the decedent for that disease; the fact as to treatment or non-treatment for the disease named, under the circumstances of the case, not being a matter of privilege upon which the plaintiff (beneficiary) can insist.
      8. People v. Glover, 71 Mich. 304, holding that testimony of physicians as to the physical condition of a respondent charged with rape, a knowledge of which was gained from an examination at the jail submitted to voluntarily after respondent was informed that the prosecuting attorney had sent them for that purpose, which was the sole object of their visit, is not privileged, and its admission is not error.
      9. Briesenmeister v. Knights of Pythias, 81 Mich. 525, holding:
      a — That a physician may testify that he is the family physician of a patient, and to the number and dates of his professional visits.
      h — That the statutory privilege is a personal one, and must be claimed before the testimony is admitted, or it is waived, but that such waiver will not prevent the party from claiming the privilege on a second trial of the case.
      10. Cooley v. Foltz, 85 Mich. 47, 49, holding that the defendant in a civil suit for an alleged assault and battery may show, by a. physician who was called to treat the plaintiff both before and after the commission of the trespass, that he was called to examine and prescribe for the plaintiff, and that she stated to him, after such examination, that she had sued the defendant, and that there was going to be a lawsuit over it, and she would want him as a witness.
    
   McGrath, J.

Plaintiff seeks to recover for an injury to his left knee, alleged to have been occasioned by a fall, on October 23, upon a defective sidewalk. The defendant offered testimony tending to show that on October 22 the walk had been repaired, and placed in a reasonably safe condition. Defendant’s counsel also sought to show that the injury which plaintiff sought to charge upon defendant was, in part at least, due to an accident which had occurred August 9. Plaintiff testified that on that date a street car had struck the same knee, and caused a crack in the kneecap, but .“after that it got well;” that Dr. Black treated him for that injury; and that another physician prescribed for the last injury. Dr. Black was sworn for the defendant, and testified that he had attended plaintiff for the first injury from August 10 to September 3. He was then asked the following question, which was excluded: ■“•Was Mr. Dittrich discharged by you at that time [September 3] from treatment?” The fact as to treatment by :a physician is not a matter of privilege. Brown v. Insurance Co., 65 Mich. 306. Defendant had the right to show, if that was the purpose, that’ plaintiff was not discharged .from treatment, but witness refused to attend further, ■because another physician had been called in, without the ■consent of witness. This testimony would not have disclosed any information acquired by the witness in his jprevious attendance, or that was necessary to enable him to prescribe, and it was error to exclude it.

Counsel for defendant requested the court to instru'ct the jury as follows:

1. If you believe the testimony of the sidewalk inspector, Walker V. Keyes, that the walk in question was repaired by the city employes October 22, 1890, then the plaintiff cannot recover in this action.
“2. If you do not believe the testimony of witness Keyes, but find that the walk was in a defective condition, yet, if you believe the plaintiff knew this defective condition, and could have passed over it safely by the exercise of reasonable care, then he cannot recover in this action, and your verdict must be for the defendant.”

If the sidewalk had been repaired on the 22d, and placed in a condition reasonably safe for pedestrians, and plaintiff was injured on the very next day, it cannot be said that a sufficient length of time had elapsed from -which notice of the condition could be inferred, nor that -.the city had had a reasonable time within which to repair '.the defect.

While contributory negligence is not to be presumed ffrom the knowledge of the existence of the defect, such ¡knowledge enjoins upon a party a degree of care commensurate therewith.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.  