Appeal from the District Court of the United States for the Western District of Wisconsin; Patrick T. Stone, Judge.
Before SPARKS, KERNER, and MINTON, Circuit Judges.
George Richter, the plaintiff-appellee, sued Lawrence Paul and his insurance carrier, the United States Fidelity & Guaranty Company, and Elvera Hoglund and her insurance carrier, the Farmers Mutual Automobile Insurance Company, to recover for personal injuries he received when Paul's car, in which Richter was riding as a guest, collided with Miss Hoglund's car, driven by herself. Paul in turn filed a counterclaim for personal injuries and property damage against Miss Hoglund and her insurance carrier, and she in turn filed a counterclaim against Paul and his insurance carrier for personal injuries and property damage.
The accident happened near Tomahawk, Wisconsin, and the actions were tried before a jury in the Western District of Wisconsin. Under the comparative negligence statute of Wisconsin, the jury found the defendant-appellant Hoglund one hundred per cent negligent. Richter recovered a judgment on his complaint against Miss Hoglund and the Farmers Mutual Automobile Insurance Company for $15,379.70. On his counterclaim Paul recovered a verdict against Miss Hoglund of $4,697. After suit was filed but before the trial, the United States Fidelity & Guaranty Company took from Richter a partial release in the nature of a covenant not to sue, in consideration of the payment of $2,750. Nothing was said in the pleadings or on the trial about this transaction, and the release is printed in the record here without having been considered below at all. The court reduced the verdict of Richter to $11,500, and that of Paul to $4,000, and entered judgment on the verdicts. From this judgment, Miss Hoglund and the Farmers Mutual Automobile Insurance Company appeal.
These facts appear from substantial evidence in the record. About ten o'clock on the evening of May 23, 1940, Lawrence Paul was driving northward on State Highway 51. Elvera Hoglund was driving south along the same road. She was alone, while Richter was a guest in the Paul car and was asleep at the time of the accident. As Paul came around a curve in the road, driving at a speed between froty and fifty miles per hour, he saw Miss Hoglund's car coming south at a distance of two hundred to three hundred feet. She was driving at a speed between thirty and thirty-five miles per hour. The cars approached on their respective sides of the road until almost opposite each other, when one of the cars got over the center line of the road and on the other car's side of the road, and a collision resulted.
Paul testified Miss Hoglund's car came over on his side of the road, and Miss Hoglund testified Paul drove his car over on her side of the road. A disinterested witness, William Yeschek, visited the scene of the accident the night it happened and saw the skid marks of Paul's car clearly on the east side of the center line as he traveled north to the point of the collision. At the point of the collision, there was much debris on the east side of the road, and there were deep cuts in the blacktop pavement where the wrecked car of Paul had veered off the east side of the road, turned over twice and landed in a ditch, headed west. The Hoglund car was across the highway, partly on the east lane and headed almost east. The left front of the Hoglund car had hit the left front wheel and fender of the Paul car. After the accident, Paul asked Miss Hoglund: "* * * what happened, she come across the road the way she did. She told me that she had been fixing a windown on the other side of the road, or down the road, and had swung across that way." Miss Hoglund admitted the window was stuck and she had been trying to close it without success, but stated she had stopped down the road before the accident for that purpose, and she denied that she was trying to fix the window while the car was in motion.
Miss Hoglund was a trained nurse employed in the private hospital of Dr. Henderson at Tomahawk. She directed the injured Richter and Paul to this hospital, where Dr. Henderson treated them. A traffic officer accompanied the parties to the hospital, and requested that a specimen of the urine of Paul and of Richter be taken and sent to the State Toxicologist for analysis to determine whether the parties were intoxicated. Richter and Paul both testified that they were not intoxicated at the time of the accident. Paul admitted that he had had three or four oneounce glasses, not quite full, of whiskey the forenoon of the day of the accident. Paul met Richter about one-thirty p.m. of the day of the accident, and they drove to Merrill, some sixty miles, where they met Paul's mother and assisted her with some business transactions. In the middle of the Paul each drank a bottle of beer. Paul testified that the drinks he had in the morning and the bottle of beer in the afternoon were all the alcoholic beverages he had that day. Richter testified that the bottle of beer was the only alcoholic beverage he had that day. They drove from Merrill to visit a nearby dam, and on to Tomahawk. Richter, who was afflicted with asthma and who had been unable to sleep during the two nights preceding the accident, fell asleep. Paul stopped in Tomahawk for a lunch. Paul then proceeded on from Tomahawk to the scene of the accident, about eleven and one-half miles away.
Paul's employer saw him just before noon, and testified that Paul was sober at that time. Paul's mother saw him just before his departure for Merrill about six p.m., and she testified he was sober at that time. The restaurant keeper at Tomahawk knew Paul and remembered that he was in his restaurant around nine p.m., and he testified that Paul was sober then and that he had no drinks there. Dr. Henderson, who treated Paul and Richter after the accident, said he could detect no odor of liquor about either of them.
In order to prove that Paul and Richter were intoxicated, the appellant Hoglund offered Dr. Henderson to prove the taking of the urine specimens. The appellees objected that Dr. Henderson was the physician of Richter and Paul and the matter was privileged, and that Dr. Henderson had no right to take specimens of his patients' urine and send them to the State Toxicologist. Dr. Henderson was extensively cross-examined and the court manifested considerable concern about the right of Dr. Henderson to take and send the urine specimens, and whether or not he had the consent of his patients to do so. The court finally permitted Dr. Henderson to testify as to the taking of the urine specimens, and their transmittal to the State Toxicologist, and permitted the State Toxicologist, Dr. Kozelka, to testify as to the alcoholic content of the urine and what the presence of this content indicated as to intoxication. The evidence showed that the urine specimens were taken at ninethirty the morning following the accident. Dr. Kozelka testified the specimen purporting to be that of Paul indicated that he was under the influence of intoxicating liquor, but the specimen of Richter indicated an insignificant amount of alcohol.
The appellants complain that the value of this testimony was destroyed by the court's questions and observations and the vigorous cross-examination of Dr. Henderson. We have carefully read all of the record with reference to Dr. Henderson's examination, and we cannot agree with the appellants that the court's conduct or the cross-examination was prejudicial to the appellants. The concern of the court and of counsel for the appellees Richter and Paul can well be understood. The court had to determine whether or not this evidence was properly obtained and admissible. Dr. Henderson was the appellees' doctor and was treating the appellees as his patients at the time he was taking their urine specimens and turning them over to third parties. It must also be borne in mind that the appellees were patients in a small private hospital where Miss Hoglund was employed and presumed to be on very friendly terms with her fellow-nurses and her employer, Dr. Henderson. Therefore, it was not unusual for the appellees' counsel to be somewhat suspicious and vitally interested in ascertaining whether the specimens were properly taken. See Kuroske v. AEtna Life Ins. Co., 234 Wis. 394, 403, 291 N.W. 384, 388, 127 A.L.R. 1505.
In determining whether the doctor's acts and revelations of things learned and his use of the specimens obtained from his patients while in his care and under treatment were within or without the privilege of Sec. 325.21 of the Wisconsin statutes, the court had a broad discretion as to the extent of the cross-examination of the doctor, and the right of the judge himself to participate therein. In the case at bar, this discretion was not abused. Before the appellants can claim prejudice of their case in the preliminary examination to determine the admissibility of evidence that is finally admitted, they would have to show very extensive and gross abuse of discretion in such preliminaries. We are quite satisfied that such abuse is not present in the instant case.
Furthermore, it is difficult for us to see how a vigorous cross-examination of Dr. Henderson could be prejudicial, when Dr. Kozelka testified at great length as to the alcoholic content of the specimens of urine, and the court instructed fully on the question of intoxiation. the issue on the question of intoxication was fairly submitted to the jury, and it resolved that question in favor of the appellees. We see no reason for disturbing this finding.
The appellants next complain that the court erred in refusing to admit in evidence the hospital record of appellee Richter. The appellants never offered the hospital record of Richter.The said record was read in evidence by the nurse Conry while under cross-examination by the attorney for appellee Paul. The attorney for Richter moved to strike all reference to Richter's hospital record except the time the specimen of urine was taken. The court sustained this motion. The appellants never objected to the motion, or to the striking from the record in accordance ...