
    The Pennsylvania Co. v. Files.
    
      Statements, made by injured party — To a physician to enable him to testify as expert — Not admissible, when — Statements made to third parties, not physicians incompetent, when— Laws of evidence — Rude governing charge of court as to prospective damages from injury.
    
    1. Where one who has received , a physical injury from the wrongful act of another, calls upon a physician, not for the purpose of receiving medical aid and treatment, hut for the purpose of enabling the physician to testify, as an expert, in a pending, or proposed, suit, statements made by the party under such circumstances in regard to his condition, are not admissible in evidence; and, for a stronger reason, like statements made to third persons, not physicians, under similar circumstances, are incompetent.
    2. Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may he reasonably certain to result from the injury.
    (Decided December 17, 1901.)
    Error to the Circuit Court of Crawford county.
    
      E. W. Tolerton, for plaintiff in error, cited the following authorities:
    
      Railway Co. v. Yokes, 12 Circ. Dec. 599; 12 C. C. R. 511; Roche v. Railroad Co., 105 N. Y. 294; Reed v. Railroad Co., 45 N. Y., 574; Winter v. Railroad Co.,
    
    
      38 N. W. Rep., 155; Darrigan v. Railroad Co., 52 Conn., 309; Railroad Co. v. Huntley, 38 Mich., 544; Rogers on Expert Testimony, 67; Hardy v. Street Ry. Co., 61 N. W. Rep., 771; Smith v. Milwaukee Builders Exchange, 64 N. W. Rep., 1041; Chapin v. Marlborough, 9 Gray, 244; Morrissey v. Ingraham, 111 Mass., 63; Barber v. Merriman, 11 Allen, 322; Bacon v. Charlton, 7 Cushing, 581; Jones v. President of Portland, 16 L. R. A., 437; Quaife v. Railroad Co., 48 Wis., 513; Pierce on Railroads, 298.
    
      Beer & Monnette and Finley <& Gallinger, for defendant in error, cited the following authorities :
    
      Insurance Co. v. Mosley, 75 U. S. (8 Wall.) 397; 1 Greenl. Ev., Sec. 102; 1 Phil. Ev., 183; 1 Taylor Ev., Section 518; Aveson v. Kinnaired, 6 East, 194; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Fay v. Harlan, 128 Mass., 244 (35 Am. Rep., 372); Bennett v. Railroad Co., 13 L. R. A., 465; Williams v. Railway Co., 37 L. R. A., 199; Bothell v. Seattle (City), 17 Wash., 263; 3 Neg. Rep., 300; Burleson v. Reading (Vil.), 110 Mich., 512 (68 N. W. Rep., 294) ; Mulliken v. Corunna, 110 Mich., 212; Railroad Co. v. Kennelly, 170 Ill., 508 (48 N. E. Rep., 996); Brown v. Mt. Holly, 69 Vt., 364; Bagley v. Mason, 69 Vt., 175; State v. Hutchinson, 95 Ia., 566; Roche v. Railroad Co., 105 N. Y., 294; Hancock County v. Leggett, 116 Ind., 546; Railway Co. v. Herrick, 49 Ohio St., 25; Kugler v. Wiseman, 20 Ohio, 361; Darnall v. Bennett, 98 Ia., 410; Combs v. New Albany Rail Mill Co., 146 Ind., 688; Nagle v. Fulmer, 98 Ia., 585; Jones on Ev., Section 352; Wetmore v. Mell, 1 Ohio St., 26; Howe v. Howe, 99 Mass., 88; State v. King, 64 Mo., 591; Perkins v. Railroad Co., 44 N. H. 223; Knowlton v. Clark, 25 Ind., 395; Keerney v. Farrell, 28 Conn., 317; Roach v. Zearing, 59 Pa. St., 74; Railroad Co. v. Johns, 36 Kans., 769; Hewitt v. Eisenbart, 36 Neb., 794; Insurance Co. v. Hillmon, 145 U. S. 285; Quaife v. Railway Co., 33 Am. Rep., 828n; Fleming v. Springfield, 154 Mass., 520; Commonwealth v. Leach, 156 Mass., 99; Railway Co. v. Stoner, 51 Fed. Rep., 649; Railway Co. v. Novak, 61 Fed. Rep., 573; Railway Co. v. Newell, 104 Ind., 264; 1 Greenleaf’s Ev., 102; Railway Co. v. Smith, 76 Ga., 209 (2 Am. St. Rep., 31 and note) ; Wilson v. Barkalow, 11 Ohio St., 475; Buddington v. Shearer, 22 Pick., 427; Ellis v. Short, 21 Pick., 142; Taylor v. Boggs, 20 Ohio St., 516; Hamilton v. Theon, 97 Ia., 737 (66 N. W. Rep., 166); Thayer v. Luce, 22 Ohio St., 62; Fuller v. Coats, 18 Ohio St., 343; Railroad v. Porter, 32 Ohio St., 328; Searles v. State, 3 Circ. Dec., 478; 6 C. C. R., 331; Cannon v. McGrew, 46 Pac. Rep., 463; Insurance Co. v. Goodin, 10 Ohio St., 557; Scovern v. State, 6 Ohio St., 288; Hollister v. Reznor, 9 Ohio St., 1; Banning v. Banning, 12 Ohio St., 437; Way v. Langley, 15 Ohio St., 392; Allen v. Parish, 3 Ohio, 107; Earl v. Shoulder, 6 Ohio, 409; Curtis v. Railway Co., 18 N. Y., 534; Ransom v. Railway Co., 15 N. Y., 415; Spicer v. Railway Co., 29 Wis., 580; Hunt v. Hoyt, 20 Ill., 544; Railway Co. v. Johnston, 66 Ga., 259.
   By the Court :

The action below was commenced by Files, a passenger on a train of the Lake Erie and Western Railway Company, to recover damages for injuries sustained by him in a collision between the train he was on, and a train of the Pennsylvania Company, occurring at a crossing of the two roads, both companies being made defendants. But, as it appeared that the Lake Erie and Western Company was not at fault, the suit was dismissed as to it; and the Pennsylvania Company, admitting its liability, a trial was had to the jury on the* amount of the damages to be recovered. A verdict for $500 was rendered.

The principal error assigned is on the admission of evidence at the trial. The plaintiff introduced as a witness Dr. Bland, who testified as to an examination he had made of the plaintiff before the trial, and as to statements made by the plaintiff at that time, in regard to his suffering from the injury. This was excepted to by the defendant as incompetent, but admitted over its objection. , It appeared that the examination was not made for the purpose of treating the plaintiff, but for the purpose of enabling the physician to testify as an expert at the trial. This evidence, we think, was incompetent. It is.to be distinguished from evidence of a like character, given by a physician called on for treatment. In such case, what the patient may say to his medical adviser as to his condition and how he suffers may be admitted. It is to be presumed in such case, that he states the truth, as it is to his interest that he should do so, and not mislead the physician by false statements as to his condition. He is under a strong .motive in such case to state the truth, and it is on this ground that such evidence is admitted. But where the physician is called on, not for the purpose of treatment, but to enable him to give evidence in a pending, or proposed suit, no such sanction of the truth of what he says exists; on the contrary he is under a strong motive to deceive the physician, and not being under oath, may with impunity, make such statements as he sees fit. What he says to a physician under such circumstances is self-serving in character and should not be admitted. Darrigan v. Railroad Co., 52 Conn., 309; Railroad Co. v. Huntley, 38 Mich., 544; and for a stronger reason, like statements made to third persons, not physicians, under similar circumstances, are incompetent.

Again, the court instructed the jury on the subject of damages, as follows: “You may consider as an element of damage the pain he has suffered, resulting from such injuries, and also such prospective damages, if any, as the jury may believe he has sustained or will sustain.” This, we think, was too broad. The jury in assessing prospective damages should have been confined to such as were reasonably certain to follow from the injury complained of. This precise point seems, from the record, not to have been called to the attention of the court, otherwise than by excepting to what was said. It is possible that had this been done, the court would have made the correction; so that if this were the only error, we might not reverse the judgment.

Reversed and cause remanded for a new trial.

Minshall, C. J., Burket, Spear, Davis . and Shauck, JJ., concur.  