Page:The Green Bag (1889–1914), Volume 16.pdf/762

 Notes of Recent Cases. to house are the products of the seller's own farm or garden affords no just reason why he should not be placed on the same basis as parties who purchase their stock from others. In either case the need of police regulation is the same. There can be no dis tinction in principle between the party who peddles his own product and the one who buys his stock from the producer and ped dles it; and the court says that it cannot rec ognize any such distinction. It therefore holds that the ordinance applies to all per sons who exercise the vocation of peddler within the city, whether they peddle their own product or that of another. • PERSONAL INJURIES. (ACTION — PHYSICAL EXAMINATION OF PLAINTIFF.) COURT OF CIVIL APPEALS OF TEXAS.

In International & G. N. R. Co. v. Butcher, 81 Southwestern Reporter 819, it was de termined that a court has no power to com pel a party, against his consent, to submit to a physical examination by physicians. The failure of a party, upon the request of his adversary, to submit to a physical examina tion, by physicians to be appointed by the court, is simply a matter to be considered by the jury. In support of this ruling the court cites A. & N.. W. Ry. Co. v. Cluck, 8 Tex. Ct. Rep. 681, 77 S. W. 403. PHYSICIANS. (PRIVILEGED COMMUNICATIONS — CONSTRUCTION OF STATUTE.) SUPREME COURT OF IOWA.

Battis v. Chicago, Rock Island & Pacific Railway Company, roo Northwestern Re porter 543, was an action against a carrier for injuries to a passenger. It appears that the company had sent its local surgeon to see plaintiff for the sole purpose of ascer taining his condition for its benefit, and on the trial the company attempted to introduce his testimony as to the condition in which he found plaintiff shortly after the accident. The admission of this evidence was objected to by plaintiff on the ground that it came within Code of Iowa, section 4608, which provides that no practising physician shall

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be allowed to disclose any confidential com munications properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the func tions of his office. The objection was sus tained, it appearing that the company's sur geon had rendered plaintiff professional ser vices when calling on him. On the appeal the company complained of this ruling, but the court says: "It may be conceded that the sole purpose of the agent in calling the phy sician was that the latter might ascertain the condition of plaintiff, and thus be prepared to advise the company, should occasion therefor arise, or be a witness on its behalf, if necessary. Certainly, if the visit of the phy sician had been confined to the limits inci dent to such purpose alone, his eligibility as a witness on behalf of the company might not be open to question. Without doubt, a railway company, with the utmost propriety, may thus advise itself of the fact of injury, and the character and extent thereof, in an ticipation of a possible claim against it for damages. And with that end in view, it may send a physician to inspect and take notes, or otherwise inform himself of existing condi tions. But this can avail the company noth ing unless the physician shall strictly retain his character as an employe of company. If, upon request or upon his own motion, he as sumes to advise or administer treatment to the patient, and the latter in any manner ac quiesces therein, the physician thereby casts aside his relation as an employé of the com pany, and transfers his allegiance to the pa tient. In such instances a case is presented where one cannot serve two masters at one and the same time. The allegiance of the physician must be wholly upon one side or the other. It matters not, in this connection, who calls him in the first instance, or who pays him. He may present himself at the side of the patient on his own motion, and he may not expect, or in fact receive, pay. The reason for this is apparent upon a moment's reflection. If the physician assumes to advise or treat, he should be put in possession of all facts necessary or material to enable him to