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  • Reily Parker, of Meridian, for appellant. The reason assigned in the court below for directing a verdict in favor of Mr. J.S. Breyer was that he was not chargeable with nor responsible for the negligence of Mrs. Breyer on this occasion, and the plaintiff contended that Mr. Breyer was responsible for such negligence. The defendants contended that to hold Mr. Breyer liable would require the application of the "family purpose doctrine," while the plaintiff contended that this doctrine was not relied upon at all, but that the general and accepted rules of master and servant were applicable. And in support of this contention, the plaintiff relied upon the uncontradicted testimony that Mrs. Breyer was then driving Mr. Breyer's automobile and using Mr. Breyer's gasoline, to go and get groceries with Mr. Breyer's money, and to bring such groceries to Mr. Breyer's house in order that Mr. Breyer might fulfill the duty imposed upon him by law to furnish and provide the necessities for his family, and that in so doing she was driving the automobile which had been provided by Mr. Breyer for such use. It is true that married women have been emancipated from the disability of coverture in this state, but it is likewise true that it is the duty of the husband, and he is primarily bound, to furnish necessities to his wife, such as the items sued for herein. Galtney v. Wood, 149 Miss. 56, 115 So. 117. See also Dunbar v. Meyer, 43 Miss. 679; Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247; Brahan v. Meridian Light Ry. Co., 121 Miss. 269, 83 So. 467. The duty to supply the groceries in this case rested upon the husband and not the wife, and in the performance of this service this wife was acting as the agent of the husband. Winn v. Haliday, 109 Miss. 691, 69 So. 685; Smith v. Jordan, 97 N.E. 761. Compare Woods v. Clements, 113 Miss. 720, 74 So. 422; Smith v. Dauber, 155 Miss. 694, 125 So. 102; Harrington v. Gough, 164 Miss. 802, 145 So. 621; Dement v. Summer, 175 Miss. 290, 165 So. 791. We are not relying upon the "family purpose doctrine" in this case in order to hold the husband liable for the acts of the wife. We are only asking that the general law of master and servant be applied, and when this is done it is our opinion that it will be held that the trial court committed error in directing a verdict in favor of the defendant, Mr. J.S. Breyer. The ruling of the trial court in excluding the testimony offered by the plaintiff to show the loss sustained by reason of a decrease in her earning capacity was error. Mississippi Cent. R. Co. v. Smith, 176 Miss. 306, 168 So. 604. It was error to instruct the jury concerning the witness Dr. Royals. Dr. Royals, one of the physicians who examined and treated the plaintiff, was not called as a witness by the plaintiff, but when the plaintiff was testifying she waived the privilege against the defendant offering this physician to testify and consented for the defendant to call him as a witness. The plaintiff in this case revealed no disposition to withhold anything from the jury that should have been offered in evidence and the court should not have prejudiced her case by asserting from the bench that the defendant could decline to use the offered witness and still assert that the plaintiff must suffer the imposition of the weight of an adverse witness, and it must be assumed that the inadequate verdict rendered by the jury was influenced by this assertion from the bench. We think that the granting of this instruction was clearly erroneous and should cause this case to be reversed. See Beard v. Williams, 172 Miss. 880, 161 So. 750; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Jordan v. Austin (Ala.), 50 So. 70; Fulson-Morris Coal Mining Co. v. Mitchell, 132 P. 1103; United Rys. E. Co. v. Clomon, 69 A. 379. For the court in this case to direct the jury to return a verdict which had been reduced to the amount of damages caused by the negligence of the plaintiff was reversible error and calculated to cause the jury to return a verdict which would be grossly inadequate. No witness was offered to challenge the truthfulness of the injuries claimed by the plaintiff, and the right to have the measure of her compensation for such injury properly adjudicated should not be denied her. Her testimony concerning the loss of earning capacity should have been submitted to the jury, and the extent of her injury should not have been prejudiced by the directions of the court to the jury to the effect that the testimony of Dr. Royals was presumed to be unfavorable, and the measure of damages in case of contributory negligence should not have misdirected the jury in the application thereof. Until her cause has been submitted to a jury in such a way as to make available all of her rights as provided by law, the extent of her injury and the measure of her compensation has not been properly adjudicated. Gilbert Cameron, of Meridian, for appellee. It is difficult to conceive a more direct case of family purpose than the mission on which Mrs. Breyer was at the time this accident occurred. Mr. Breyer had been in the performance of his duties as master mechanic in the railroad yards that day and had come home with his car that afternoon; and as was usual and customary, Mrs. Breyer then took the car, owned by Mr. Breyer, and went shopping for groceries for the family while he remained at home. These groceries were to be used by the family as a unit. The car was not used exclusively by Mrs. Breyer to go for groceries. At any time when Mr. Breyer was not using the car in going to and from his work, she used it for her own pleasures and uses for herself and the family. The car was furnished for dual purposes — one for business by Mr. Breyer and the other for his family. The legislature long ago stripped the husband of his rights and responsibilities over the conduct of the wife. The mutual responsibilities and liabilities are now reciprocal. The husband is no more liable for the accidents of the wife than the wife is for the accidents or conduct of the husband. And the ownership of the car is, of course, not controlling. The question is: Was the wife at the time in the relationship of that of servant to her husband as master? We find no case, in the absence of the husband being in the car, where he is liable, except where the wife was on some particular business mission for the husband other than that of the general family affairs. The "family purpose doctrine" has been definitely rejected in this state. Dement v. Summer, 175 Miss. 290, 165 So. 791. No error was committed in refusing to permit the plaintiff to testify as to her loss of earning capacity. The testiony offered by the plaintiff could form no basis on which to base her prospective earnings, and the wildest conjecture could not figure it out. Mrs. Clary was the patient of Dr. Royals, who lived next door to her and who owned the apartment in which she lived. She testified that on the night of the accident she called in Dr. Royals and he came to her apartment, administered to her hurts, and directed that she go to the hospital the next day, which she did. She stayed in the hospital three or four days, and he treated her all the time she was in the hospital and after her return to her apartment. He was the only physician who did treat her immediately following the accident. A short time before the case was called up for trial, she consulted Dr. Flynt solely for the purpose of using him as a witness in the case and not as a family physician. Several months later, she conferred with Dr. Key, who had been her family physician a good many years before that time. He was consulted by her a short time before the trial of the lawsuit, and she was examined again by Dr. Royals shortly before the date of her testimony. Dr. Royals was the only one who knew her condition immediately after the accident and the only physician who knew her case history and her condition. Plaintiff did not introduce Dr. Royals as a witness, notwithstanding the fact that he was the only physician who could have testified as to her injuries. She did testify that Dr. Royals bound up her leg but did not know whether he put any medicine on it. Her sole claim for damages seems to have boiled itself down to the question that, though there was no abrasion of the skin, in some way the muscle in her leg was cut. Of all the doctors, Dr. Royals would certainly have known whether that was true or not. Under the circumstances, we requested and got the usual instructions as to the presumption that Dr. Royals's testimony would have been adverse to her. We submit that this instruction was not error. Counsel for appellant says that, when she was being examined, she was asked the question whether she objected to any physician or anybody else testifying in the case, to which she replied that she did not. Counsel do not cite any case in support of that proposition. The statute says that the physician shall not testify except at the instance of the patient, and it seems to be well established that the instance of the patient means at the patient's request. Merely because one in a trial or lawsuit says that the other side is privileged to introduce a physician could not meet the presumption, as the physician might be highly adverse to testifying at all; and under the circumstances of this case, where Mrs. Clary was a tenant in his apartment, his next door neighbor, and his patient, to say that the adverse party would be compelled to use the process of the court to get an embarrassed physician on the stand would be merely to give to the party who did not introduct the friendly physician a chance to evade such presumption with impunity. The question of the propriety of this instruction was finally put to rest in this state in the case of Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 131 A.L.R. 684, and Genola v. Osburn, 194 Miss. 235, 11 So.2d 910. The instruction complained of by learned counsel for appellant, which was given under the comparative negligence statute and which directed the jury that, if they believed both Mrs. Clary and Mrs. Breyer were guilty of negligence, the verdict should be decreased accordingly, was not error. The instruction is somewhat awkward as written; but when this instruction is taken in connection with the erroneous instruction for the plaintiff on the doctrine of negligence and contributory negligence, we do not see how this could have in any wise misled the jury, nor why it would not be perfectly plain to the jury that, while the plaintiff had a right to recover even though she herself was guilty of negligence, yet the jury would have to reduce the damages accordingly so as not to give Mrs. Clary a right to recover for her own negligence. When the jury was instructed that the jury was to reduce the damages to the amount of negligence contributory to Mrs. Clary, we do not believe it could have possibly misled the jury because the words "in proportion" were omitted; in fact, the word "proportion" was emphasized in the amount of damages which they would have to disminish. What they were called upon to do, and the instruction is plain on that proposition, was, while it was their duty to find for the plaintiff if the plaintiff was negligent with the defendant, when they found a verdict for her, they would have to deduct from that verdict the amount of damages attributable to the negligence of Mrs. Clary. Argued orally by Marion W. Riley, for appellant, and by C.B. Cameron, for appellee.
Judges
  • Alexander, J., delivered the opinion of the court.
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  • Reily Parker, of Meridian, for appellant. The reason assigned in the court below for directing a verdict in favor of Mr. J.S. Breyer was that he was not chargeable with nor responsible for the negligence of Mrs. Breyer on this occasion, and the plaintiff contended that Mr. Breyer was responsible for such negligence. The defendants contended that to hold Mr. Breyer liable would require the application of the "family purpose doctrine," while the plaintiff contended that this doctrine was not relied upon at all, but that the general and accepted rules of master and servant were applicable. And in support of this contention, the plaintiff relied upon the uncontradicted testimony that Mrs. Breyer was then driving Mr. Breyer's automobile and using Mr. Breyer's gasoline, to go and get groceries with Mr. Breyer's money, and to bring such groceries to Mr. Breyer's house in order that Mr. Breyer might fulfill the duty imposed upon him by law to furnish and provide the necessities for his family, and that in so doing she was driving the automobile which had been provided by Mr. Breyer for such use. It is true that married women have been emancipated from the disability of coverture in this state, but it is likewise true that it is the duty of the husband, and he is primarily bound, to furnish necessities to his wife, such as the items sued for herein. Galtney v. Wood, 149 Miss. 56, 115 So. 117. See also Dunbar v. Meyer, 43 Miss. 679; Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247; Brahan v. Meridian Light Ry. Co., 121 Miss. 269, 83 So. 467. The duty to supply the groceries in this case rested upon the husband and not the wife, and in the performance of this service this wife was acting as the agent of the husband. Winn v. Haliday, 109 Miss. 691, 69 So. 685; Smith v. Jordan, 97 N.E. 761. Compare Woods v. Clements, 113 Miss. 720, 74 So. 422; Smith v. Dauber, 155 Miss. 694, 125 So. 102; Harrington v. Gough, 164 Miss. 802, 145 So. 621; Dement v. Summer, 175 Miss. 290, 165 So. 791. We are not relying upon the "family purpose doctrine" in this case in order to hold the husband liable for the acts of the wife. We are only asking that the general law of master and servant be applied, and when this is done it is our opinion that it will be held that the trial court committed error in directing a verdict in favor of the defendant, Mr. J.S. Breyer. The ruling of the trial court in excluding the testimony offered by the plaintiff to show the loss sustained by reason of a decrease in her earning capacity was error. Mississippi Cent. R. Co. v. Smith, 176 Miss. 306, 168 So. 604. It was error to instruct the jury concerning the witness Dr. Royals. Dr. Royals, one of the physicians who examined and treated the plaintiff, was not called as a witness by the plaintiff, but when the plaintiff was testifying she waived the privilege against the defendant offering this physician to testify and consented for the defendant to call him as a witness. The plaintiff in this case revealed no disposition to withhold anything from the jury that should have been offered in evidence and the court should not have prejudiced her case by asserting from the bench that the defendant could decline to use the offered witness and still assert that the plaintiff must suffer the imposition of the weight of an adverse witness, and it must be assumed that the inadequate verdict rendered by the jury was influenced by this assertion from the bench. We think that the granting of this instruction was clearly erroneous and should cause this case to be reversed. See Beard v. Williams, 172 Miss. 880, 161 So. 750; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Jordan v. Austin (Ala.), 50 So. 70; Fulson-Morris Coal Mining Co. v. Mitchell, 132 P. 1103; United Rys. E. Co. v. Clomon, 69 A. 379. For the court in this case to direct the jury to return a verdict which had been reduced to the amount of damages caused by the negligence of the plaintiff was reversible error and calculated to cause the jury to return a verdict which would be grossly inadequate. No witness was offered to challenge the truthfulness of the injuries claimed by the plaintiff, and the right to have the measure of her compensation for such injury properly adjudicated should not be denied her. Her testimony concerning the loss of earning capacity should have been submitted to the jury, and the extent of her injury should not have been prejudiced by the directions of the court to the jury to the effect that the testimony of Dr. Royals was presumed to be unfavorable, and the measure of damages in case of contributory negligence should not have misdirected the jury in the application thereof. Until her cause has been submitted to a jury in such a way as to make available all of her rights as provided by law, the extent of her injury and the measure of her compensation has not been properly adjudicated. Gilbert Cameron, of Meridian, for appellee. It is difficult to conceive a more direct case of family purpose than the mission on which Mrs. Breyer was at the time this accident occurred. Mr. Breyer had been in the performance of his duties as master mechanic in the railroad yards that day and had come home with his car that afternoon; and as was usual and customary, Mrs. Breyer then took the car, owned by Mr. Breyer, and went shopping for groceries for the family while he remained at home. These groceries were to be used by the family as a unit. The car was not used exclusively by Mrs. Breyer to go for groceries. At any time when Mr. Breyer was not using the car in going to and from his work, she used it for her own pleasures and uses for herself and the family. The car was furnished for dual purposes — one for business by Mr. Breyer and the other for his family. The legislature long ago stripped the husband of his rights and responsibilities over the conduct of the wife. The mutual responsibilities and liabilities are now reciprocal. The husband is no more liable for the accidents of the wife than the wife is for the accidents or conduct of the husband. And the ownership of the car is, of course, not controlling. The question is: Was the wife at the time in the relationship of that of servant to her husband as master? We find no case, in the absence of the husband being in the car, where he is liable, except where the wife was on some particular business mission for the husband other than that of the general family affairs. The "family purpose doctrine" has been definitely rejected in this state. Dement v. Summer, 175 Miss. 290, 165 So. 791. No error was committed in refusing to permit the plaintiff to testify as to her loss of earning capacity. The testiony offered by the plaintiff could form no basis on which to base her prospective earnings, and the wildest conjecture could not figure it out. Mrs. Clary was the patient of Dr. Royals, who lived next door to her and who owned the apartment in which she lived. She testified that on the night of the accident she called in Dr. Royals and he came to her apartment, administered to her hurts, and directed that she go to the hospital the next day, which she did. She stayed in the hospital three or four days, and he treated her all the time she was in the hospital and after her return to her apartment. He was the only physician who did treat her immediately following the accident. A short time before the case was called up for trial, she consulted Dr. Flynt solely for the purpose of using him as a witness in the case and not as a family physician. Several months later, she conferred with Dr. Key, who had been her family physician a good many years before that time. He was consulted by her a short time before the trial of the lawsuit, and she was examined again by Dr. Royals shortly before the date of her testimony. Dr. Royals was the only one who knew her condition immediately after the accident and the only physician who knew her case history and her condition. Plaintiff did not introduce Dr. Royals as a witness, notwithstanding the fact that he was the only physician who could have testified as to her injuries. She did testify that Dr. Royals bound up her leg but did not know whether he put any medicine on it. Her sole claim for damages seems to have boiled itself down to the question that, though there was no abrasion of the skin, in some way the muscle in her leg was cut. Of all the doctors, Dr. Royals would certainly have known whether that was true or not. Under the circumstances, we requested and got the usual instructions as to the presumption that Dr. Royals's testimony would have been adverse to her. We submit that this instruction was not error. Counsel for appellant says that, when she was being examined, she was asked the question whether she objected to any physician or anybody else testifying in the case, to which she replied that she did not. Counsel do not cite any case in support of that proposition. The statute says that the physician shall not testify except at the instance of the patient, and it seems to be well established that the instance of the patient means at the patient's request. Merely because one in a trial or lawsuit says that the other side is privileged to introduce a physician could not meet the presumption, as the physician might be highly adverse to testifying at all; and under the circumstances of this case, where Mrs. Clary was a tenant in his apartment, his next door neighbor, and his patient, to say that the adverse party would be compelled to use the process of the court to get an embarrassed physician on the stand would be merely to give to the party who did not introduct the friendly physician a chance to evade such presumption with impunity. The question of the propriety of this instruction was finally put to rest in this state in the case of Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 131 A.L.R. 684, and Genola v. Osburn, 194 Miss. 235, 11 So.2d 910. The instruction complained of by learned counsel for appellant, which was given under the comparative negligence statute and which directed the jury that, if they believed both Mrs. Clary and Mrs. Breyer were guilty of negligence, the verdict should be decreased accordingly, was not error. The instruction is somewhat awkward as written; but when this instruction is taken in connection with the erroneous instruction for the plaintiff on the doctrine of negligence and contributory negligence, we do not see how this could have in any wise misled the jury, nor why it would not be perfectly plain to the jury that, while the plaintiff had a right to recover even though she herself was guilty of negligence, yet the jury would have to reduce the damages accordingly so as not to give Mrs. Clary a right to recover for her own negligence. When the jury was instructed that the jury was to reduce the damages to the amount of negligence contributory to Mrs. Clary, we do not believe it could have possibly misled the jury because the words "in proportion" were omitted; in fact, the word "proportion" was emphasized in the amount of damages which they would have to disminish. What they were called upon to do, and the instruction is plain on that proposition, was, while it was their duty to find for the plaintiff if the plaintiff was negligent with the defendant, when they found a verdict for her, they would have to deduct from that verdict the amount of damages attributable to the negligence of Mrs. Clary. Argued orally by Marion W. Riley, for appellant, and by C.B. Cameron, for appellee.
Judges
  • Alexander, J., delivered the opinion of the court.
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Smart Summary

CLARY v. BREYER et al.

1. AUTOMOBILES.

Where automobile was provided by husband for family use and was available for shopping by his wife, wife's use of automobile at time of collision pursuant to household routine known to husband was not an "agency" for him by the circumstance that groceries and other commodities so purchased would be available for his use as a member of the family so as to render him liable for injuries sustained in collision.

2. DAMAGES.

In injury action where plaintiff had not served as a trained nurse during preceding four years and had married and assumed duties of a housewife, supplemented by local employment at a theater, testimony that it was plaintiff's intention to go into training at a distant city to take courses in nursing to equip herself adequately was properly excluded as to speculative.

3. DAMAGES.

A thwarted intent to qualify for services is not available as a basis for computing the extent to which such intent might have matured into efficiency or the extent to which such acquired efficiency would be impaired by present disabilities in determining damages for personal injury.

4. APPEAL AND ERROR.

Where injured plaintiff had procured an instruction allowing inclusion as damages any impairment of plaintiff's earning capacity, plaintiff could not complain of exclusion of testimony that, although she had not been engaged in nursing for the past four years, it was her intention to go into training at a distant city to take courses in nursing to equip herself adequately.

5. APPEAL AND ERROR.

Instruction that, if plaintiff and defendant were negligent in proximately causing automobile accident, jury must lessen damages, if any, awarded to plaintiff to negligence attributal to plaintiff, though inartificially drawn, was not prejudicial (Code 1930, sec. 511).

6. EVIDENCE.

There is no technical potency in a mere formal offer which conclusively shields plaintiff against adverse inferences from failure to call an available witness or imposes upon defendant procedural disadvantages, but the sincerity of the tender and its legal efficacy remain in direct ratio to the feasibility of compliance (Code 1930, sec. 586).

7. TRIAL. Witnesses.

Plaintiff's offer to permit her local examining physician to testify was a "waiver" of her statutory privilege against disclosure of communications between plaintiff and her physician, and hence, where the offer was made before taking of testimony had reached the halfway mark and physician who was not called by plaintiff was not shown not to have been reasonably available, instruction that the presumption was that physician's testimony would have been adverse to plaintiff was erroneous (Code 1930, secs. 586, 1536).

Alexander, J., delivered the opinion of the court.

Appellant was plaintiff in the trial court. She brought suit to recover damages arising out of an automobile collision, in which the respective drivers were Mrs. Clary and Mrs. Breyer. Plaintiff was awarded judgment for $750 and appeals, assigning certain errors in the instructions and in the exclusion of evidence, all of which were relevant to the amount of the verdict. There is no cross-appeal.

The husband of appellee was joined as defendant, but the trial court sustained defendant's motion to exclude the testimony as to his liability. This action is assigned as error.

The liability of the husband here is controlled by Dement v. Summer, 175 Miss. 290, 165 So. 791. There is some intimation by counsel that Mrs. Breyer was engaged on the occasion in question upon some definite mission for the husband. However, the testimony shows no more than that the car was provided for the use of the family and was available for shopping by his wife. Her use at this time was pursuant to a household routine which, although known to the husband, may not be converted into an agency for him by the circumstance that groceries and other commodities so purchased would be available for his use as a member of the family. There was no express direction. To hold him liable would be to reinstate the "family purpose doctrine." There was no error here.

The next assignment involves the exclusion of testimony regarding the earning capacity of the plaintiff. At the time of the accident, she was employed at a local theater but the loss of wages there earned were not sought as a basis for recovery. She had formerly served as a trained nurse but had not engaged in such employment during the preceding four years. In the meantime, she had married and assumed the duties of housewife, supplementing these duties by the local employment above stated. Evidence was introduced over objection showing the usual bases for pay of nurses in that locality. It was further offered to show that although she had not been engaged in nursing for the past four years, it was her intention to go into training at a distant city to take courses in nursing in order to equip herself adequately. To this testimony, objection was sustained. We find no error here. The prospective earnings as a trained nurse after such training involve too many speculative factors to afford a satisfactory and acceptable gauge. A thwarted intent to qualify for services is not available as a basis for computing either the extent to which such intent might have matured into efficiency nor the extent to which such acquired efficiency would be impaired by present disabilities. Moreover, plaintiff procured an instruction which allowed the jury to include as damages "any impairment of the plaintiff's earning capacity."

The granting of the following instruction to the defendant is next assigned as error: "The Court charges the jury for the defendant, Mrs. Alice Breyer, that if you believe from the testimony in this case that the plaintiff, Mrs. Clary, and the defendant, Mrs. Alice Breyer, both were guilty of negligence, as defined in these instructions, at the time of the accident, proximately causing the same or proximately contributing to the cause of said accident, and the jury should return any verdict for the plaintiff, then under their oaths, the jury must lessen any damages, if any, awarded the plaintiff to the amount of negligence attributable to Mrs. Clary."

This instruction was inartificially drawn and would better have followed the unambiguous language of the statute, Code 1930, Section 511. We do not hold that its allowance was reversible error, but in view of the necessity for remanding the case, we find it appropriate to make this comment.

The last error assigned is the granting of the following instruction for the defendant: "The Court charges the jury for the defendant, Mrs. Alice Breyer, that if they believe from the testimony in this case that Dr. Royals treated the plaintiff as her physician for the injuries alleged to have been sustained by her in this case, and that the said Dr. Royals was available as a witness in her behalf, and she failed to introduce him as such witness, then the presumption is that his testimony would have been adverse to the plaintiff."

While it is the opinion of the writer that this instruction not only violates Code 1930, Section 586, and is in a form which exceeds even the bounds to which similar instructions were extended in Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 131 A.L.R. 684, our decision is based upon other grounds. During the examination of plaintiff, she was asked whether she was willing for any of the doctors who examined her to testify, to which she gave an affirmative answer. Dr. Royals was one of such physicians, and he was not called as a witness by the plaintiff. Such offer by the plaintiff constituted a waiver of the privilege accorded by Code 1930, Section 1536. In so holding, however, we have taken into consideration certain factors which, if absent, could well lead to a different conclusion. These factors here are the fact that the offer was made during the testimony of plaintiff and before the taking of testimony in the case had reached the half-way mark; the absence of any showing that Dr. Royals, who was a local physician, was not reasonably available and that his attendance could not have been procured without unreasonable delay or discomfiture to the court. We therefore emphasize that there is no technical potency on a mere formal offer which of itself operates conclusively to shield plaintiff against adverse inferences or to impose upon the defendant procedural disadvantages. Both the sincerity of the tender and its legal efficacy must remain in direct ratio to the feasibility of compliance. In view of our conclusion that the privilege was here effectively waived, the foregoing instruction was for such reason erroneous.

Since the above errors are relevant to the issue of damages and the cause must be remanded, there is no occasion to consider the assignment relating to the alleged inadequacy of the verdict.

Reversed and remanded for trial upon the issue of damages only.

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CLARY v. BREYER
(May 31, 1943)