8657-8665), operates to diminish the amount of | to be elicited from the excluded testimony of recovery rather than defeat the action, were cor- a physician concerning statements made by the rect in principle, although incomplete, the de- plaintiff, comment on the failure to call such fendant should have requested a more specific representatives as witnesses at the trial was charge in order to make the error, if any, avail- within the scope of legitimate argument of counable. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. 216(2); Trial, Cent. Dig. § 628.] 4. WITNESSES 223-PRIVILEGED COMMUNICATIONS-PROVINCE Of Court. sel. [Ed. Note.-For other cases, see Trial, Cent Dig. § 299; Dec. Dig. 122.] Lairy, C. J., dissenting. Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge. It was within the province of the court to determine from the entire examination of a Action by Carl Gross against the Cincinphysician and from other relevant evidence whether the relation of physician and patient nati, Hamilton & Dayton Railroad Company. existed between the witness and the plaintiff at Judgment for plaintiff, and defendant apthe time of alleged statements made by defend-peals. ant in the presence of the witness. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 787; Dec. Dig. 223.] Transferred from Appellate Court under section 1394, Burns' Ann. St. 1914. Affirmed. For opinion of Appellate Court, see 111 N. 5. WITNESSES 223-PRIVILEGED COMMUNI- UTE. Evidence held to show that the relation of physician and patient existed between a witness and plaintiff at the time alleged statements were made by the plaintiff in the presence of the witness. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 787; Dec. Dig. 223.] 6. WITNESSES 212-PRIVILEGED COMMUNICATIONS-PHYSICIANS STATUTE-CONSTRUC TION. ness Burns' Ann. St. 1914, § 520, providing that physicians shall not be competent witnesses as to matters communicated to them as such by patients in the course of their professional busior advice given in such cases, covers a broader field than is indicated by the literal meaning of the words employed, and renders the physician incompetent to disclose information acquired by him while attending a patient in a professional capacity, and includes all that he observes while so acting as to matters communicated by the patient. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 774; Dec. Dig. 212.] J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, for appellant. Little & Little, of Indianapolis, and Wray & Campbell, of Shelbyville, for appellee. SPENCER, J. [1] Appeal from a judgment for $3,000 recovered by appellee on account of personal injuries sustained by him while in the employ of appellant as a railroad brakeman. The only error assigned challenges the ruling of the circuit court in denying appellant's motion for a new trial, and under this assignment certain instructions given and refused are first questioned. Instruction No. 1, given by the court on its own motion, sets out, in substance, the allegations of appellee's complaint, and was followed by instruction No. 2 which, in effect, told the jury that if appellee should prove all the material averments of his plead 7. WITNESSES 214-PRIVILEGED COMMUNI-ing by a fair preponderance of the evidence. CATIONS-PHYSICIANS-ADMISSIBILITY. In view of Burns' Ann. St. 1914, § 520, where a witness in his capacity as physician immediately before and after an interview with the plaintiff represented both parties, his testimony as to statements made by the plaintiff to other persons present at the interview was properly excluded. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 776; Dec. Dig. 214.] he would be entitled to a verdict. The suf ficiency of this instruction as a matter of law is here challenged by appellant on the theory that the allegations of appellee's complaint, to which the instruction refers, do not state a cause of action. A similar objection is made to No. 6 of the court's instructions. To meet these objections appellee calls 8. EVIDENCE 123(3) — RES GESTÆ - PROV-attention to the fact that the sufficiency of INCE OF TRIAL COURT. Whether statements of the conductor and rear brakeman, made to each other in the caboose of the freight train immediately following the collision, concerning a switch which had been left open and caused the wreck, were a part of the res gesta was for the trial court to determine under all the circumstances. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 354; Dec. Dig. 123(3).] 9. WITNESSES 214-PRIVILEGED COMMUNI his complaint was not tested in the trial court by demurrer, and contends that appellant has thus waived any defects in the pleading, and in instructions which are based on the allegations thereof. This position finds express support in the case of Dunham v. Jones, 184 Ind. 46, 48, 110 N. E. 203, 204, where it is held that by failing to demur to a complaint, the defendant waives a consideration of its sufficiency to state a cause of action, and cannot thereafter predicate error in the giving of an instruction which authorizes a verdict on proof of the material allegations of the pleading. To hold otherwise would tend materially to weaken the force of the amendment to the demurrer statute, as made by the Where other representatives of the defend- General Assembly of 1911 (Acts 1911, p. 415, ant were in possession of all the facts sought§ 2), and permit an indirect attack on a plead CATIONS. In a railroad servant's action for injuries, representatives of the defendant, who were not physicians, were competent to testify as to any statements made by plaintiff to them when they visited him at the hospital. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 776; Dec. Dig. 214.] 10. TRIAL 122-ARGUMENT OF COUNSEL. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ! Ing after the complaining party has waived | advised as to purpose of taking him to the his right to attack the same directly and waiting room. The witness was then asked: waited the outcome of the trial. We hold, "What did Mr. Cross say at that time?" Aptherefore, that the error, if any, in instructions 2 and 6, given by the court on its own motion, has been waived. [2] The objections urged as to the giving and refusal of other instructions rest: First, on appellant's contention that the trial court erroneously construed appellee's complaint as being predicated on the federal Employers' Liability Act; and, second, on its further contention that some of these instructions do not fully state the effect of contributory negligence on the right to a recovery under that law. We need not review in detail the allegations of the complaint. There can be no doubt that it is fairly open to the construction placed on it by the trial court, and that construction will be adopted on appeal, even though it should appear that the pleading is open to another and equally reasonable interpretation. Gilchrist v. Hatch, 183 Ind. 371, 381, 106 N. E. 694. [3] The instructions which applied the statutory rule that contributory negligence, under the federal act, operates to diminish the amount of recovery rather than to defeat the action were correct in principle (Norfolk, etc., R. Co., v. Earnest, 229 U. S. 114, 120, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172), and, if incomplete, appellant should have requested a more specific charge in order to make the error, if any, available (Dunham v. Jones, 184 Ind. 46, 49, 110 N. E. 203). In pellee objected to this question on the ground that it called for a privileged communication, and the court sustained the objection. response to further questioning by counsel for appellant, witness testified that on the occasion of the interview with White and Vorhees he did not attend appellee as a physician, but went to the hospital for two reasons, one, to make sure that they were allowed to see appellee, and the other to see that the injured man was given proper treatment in his removal to and from the waiting room; that witness did not participate in the conversation with White and Vorhees. Witness was again asked to state what appellee said, and the objection to the question was sustained. [4-7] In support of its contention that these rulings of the trial court were erroneous appellant earnestly insists that at the time of the interview in question Dr. Ossenbach was not acting in his professional capacity. While it is true that in his preliminary examination the doctor stated that he was not so acting, it was within the province of the court to determine, from the entire examination of the witness and from other relevant evidence, whether the relation of physician and patient existed at the time, and its decision on the question is, in this case, fairly supported by the evidence. Chicago, etc., R. Co. v. Schenkel, 57 Ind. App. 175, 188, 104 N. E. 50. MoreCertain objections are also made as to the over, the witness, both immediately before exclusion of evidence offered by appellant. and after the interview, at least, represented It appeared from evidence introduced on each of the parties whose interests here conbehalf of appellee that, following the acci- flict. Under such circumstances it was peculdent, he was brought to the Deaconess Hos- iarly within the province of the trial court, pital at Indianapolis, and an operation was in passing on the admissibility of evidence, there performed to relieve his injuries; that to determine what weight should be given to for three or four days after the operation he was in a very weakened condition, and at times semiconscious; that he was attended by Drs. Truitt and Ossenbach, the latter of whom called twice each day for the first two or three days. Dr. Ossenbach was called to the witness stand by appellant, and testified that he had been in the employ of the company as a surgeon for about 15 years; that after the accident in which appellee was injured he directed the hospital nurses not to admit any one into appellee's presence except at the direction of the witness; that he visited appellee occasionally during his stay in the hospital and after his return to his home, and gave directions as to the care of the injured man and the administration of medicine; that on the first or second evening after the accident witness made an arrangement with White and Vorhees, representatives of appellant, to visit and interview appellee in the waiting room of the hospital; that appellee, at witness' direction, was wheel- [8] At the time of the collision, the conduced into the waiting room and there question- tor and rear brakeman of the freight train ed by White and Vorhees concerning the on which appellee was employed were in the preliminary statements of the witness. Our statute (section 520, Burns 1914), provides that physicians shall not be competent witnesses "as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases." This enactment has consistently been construed by this court as covering a broader field than is indicated by the literal meaning of the words employed, and, so construed, it renders the physician incompetent to disclose information acquired by him while attending a patient in a professional capacity. This includes all that he sees or observes, while so acting, as to matters communicated by the patient. Towles v. McCurdy, 163 Ind. 12, 14, 71 N. E. 129. The rule, which is a beneficent one, is not to be lightly broken down (Nordyke & Marmon Co. v. Whitehead, 183 Ind. 7, 14, 106 N. E. 867), and we hold that the offered evidence was properly excluded. show by each of them as witnesses certain record fully sustains its decision. Ohio, etc., plied with the provisions of Burns' Ann. St. Cent. Dig. § 105; Dec. Dig. 83(2).] "Due process of law" within the meaning of the Fourteenth Amendment to the federal Constitution requires only that notice in some form be heard before some tribunal, and it is within shall be provided and an opportunity given to the power of the Legislature to prescribe the kind of notice and the tribunal. [Ed. Note.-For other cases, see Constitution al Law, Cent. Dig. §§ 925-927; Dec. Dig. 305. For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.ĺ 4. CONSTITUTIONAL LAW 309(1)—DUE PROCESS-STREET VACATION PROCEEDINGS. ficient notice in street vacation proceedings al Law, Cent. Dig. §§ 929, 930; Dec. Dig. 5. CONSTITUTIONAL LAW 306- DUE PRO- [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 928. 936, 939, 942-946, 948, 949; Dec. Dig. 306.] [9, 10] During his opening argument for appellee Mr. Campbell, in referring to the interview at the hospital, called attention to the fact that Messrs. White and Vorhees were present as representatives of appellant and wrote down what was said. This was followed by the statement, "Why didn't the defendant have Mr. Vorhees and Mr. White here to testify?" Appellant objected to the statement, and moved to discharge the jury. This Burns' Ann. St. 1914, § 8700, providing for motion was overruled, but the court ad- vacation of public streets, giving notice to persons interested and an appeal from decisions of monished Mr. Campbell to confine his argu-the board of public works, held to be within the 'ment to the evidence given, and directed requirements of the Fourteenth Amendment rethe jury to disregard the statement. White quiring due process of law. and Vorhees, were competent witnesses as to any statements made by appellee to them (Indiana Union Traction Co. v. Thomas, 44 Ind. App. 468, 475, 88 N. E. 356), and, as agents of appellant, they were in possession of all the facts sought to be elicited from the excluded testimony of Dr. Ossenbach. Comment on the failure to call them as witnesses at the trial was therefore within the scope of legitimate argument, and the ruling of the court on appellant's objection was favorable than it had a right to expect. Other matters suggested have received careful consideration, but they present no reversible error and are not of sufficient importance to warrant an extension of this opinion with their treatment in detail. Judgment affirmed. LAIRY, C. J., dissents. (186 Ind. 455) more FALENDER v. ATKINS et al. (No. 23009.)* CORPORATIONS 657(2) The right to control and vacate public streets rests with the Legislature, but in this state such jurisdiction has been delegated to local authorities. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 1429; Dec. Dig. 657(2).] 2. EVIDENCE 83(2)-PRESUMPTIONS-OFFI CIAL PROCEEDINGS. In the absence of a contrary showing, it will be assumed that the board of public works com 6. EMINENT DOMAIN 71-TAKING PROPERTY WITHOUT COMPENSATION-STREET VACATION PROCEEDINGS. Burns' Ann. St. 1914, § 8700, providing for Bill of Rights, § 21, providing that property street vacation proceedings, held not contrary to shall not be taken by law without just compensation. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 180-187; Dec. Dig. 71.] 7. EMINENT DOMAIN 100(6)—STREET VACATION PROCEEDINGS-DAMAGES. In street vacation proceedings in this state it is not the law that property owners whose lands do not abut on the portion of street vacated are not entitled to damages, and where the vacation left appellant's property abutting on a cul-de-sac, he was entitled to damages therefor. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 267; Dec. Dig. 100(6).] 8. EMINENT DOMAIN 238(2)—APPEAL FROM VACATION PROCEEDINGS. board of public works jurisdiction to determine Burns' Ann. St. 1914, § 8700, giving the damages in street vacation proceedings, made such acts judicial, and their determination a final order from which an appeal is authorized under Acts 1905, c. 129, § 101. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 660; Dec. Dig. 238(2).] 9. EMINENT DOMAIN 100(6)-STREET VACATION PROCEEDINGS DAMAGES-STATUTE. Burns' Ann. St. 1914, § 8700, providing for assessment of damages in street vacation proceedings, held broad enough to include appellant's injury where the vacation left his property abutting on a cul-de-sac. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 267; Dec. Dig. 100(6).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. 10. EMINENT DOMAIN 243(3)-STREET VACATION PROCEEDINGS-DAMAGES. Where no damages were awarded to appellant by a board of public works in street vacation proceedings, it will be presumed that the board found he had suffered no special injury, and where he did not avail himself of the privilege of appeal therefrom, he cannot complain. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 628, 629, 700; Dec. Dig. 243(3).] [2] In the absence of a showing to the contrary, we must assume that the board of public works complied with the provisions of the statute authorizing the vacation of that part of the street in question. But, with this concession, appellant insists that the act permits the taking of private property by such proceedings, and therefore violates section 1 of the Fourteenth Amendment of our federal Constitution, in that it does not provide for Appeal from Superior Court, Marion Coun- notice as contemplated by the words "due ty; V. G. Clifford, Judge. Action by Samuel Falender against Henry C. Atkins and others. Judgment for defendants, and plaintiff appeals. Affirmed. Ralph M. Ketcham, Clair McTurnan, Roger W. Wallace, John Vajen Wilson, and Merrill Moores, all of Indianapolis, for appellant. Ryan, Ruckelshaus & Ryan and Ferdinand Winter, all of Indianapolis, for appellees. MYERS, J. Appellant brought this action to recover of appellees damages for the obstruction of Eddy street in Indianapolis. A demurrer was sustained to the complaint, and judgment followed for appellees. On October 7, 1907, the board of public works of the city of Indianapolis vacated all that portion of Eddy street from the north bank of Pogues run north to Henry street. Appellees own all the lots abutting on both sides of the street vacated, and immediately after such vacation they constructed a fence across the south end thereof. At the time of such vacation, and continuously since May 6, 1898, appellant was the owner of certain lots abutting on and immediately south of that part of the street vacated; his south line being about 70 feet north of Merrill street, which runs east and west, and one city block south of Henry street. The vacation aforesaid leaves appellant's property abutting upon a cul-de-sac instead of upon a thoroughfare. Appellant alleges that he had no notice of the proposed vacation until after it was made; that he had no knowledge of the publication of any newspaper notice until October 7, 1907; that no allowance was ever made to him for the damage he has sustained, which is $3,000. [1] The right to control and vacate streets dedicated and accepted by the public is primarily with the Legislature, but this jurisdiction, in this state, has been delegated to municipalities or local tribunals. Hudson Township v. Smith, 182 Ind. 260, 106 N. E. 359; Town of New Castle v. Lake Erie, etc., R. Co., 155 Ind. 18, 23, 57 N. E. 516. Applicable to the case at hand, the General Assembly has vested in the board of public works of the city of Indianapolis the exclusive control of its streets and alleys, and prescribed the procedure to be followed by the board in such cases. Acts 1905, p. 219, §§ 97, 98, 99, 101, and 102; section 8700 et seq., Burns 1914. process of law," and that it also contravenes section 21 of the Bill of Rights of the Constitution of Indiana, which provides that "no man's property shall be taken by law without just compensation." Section 97 of the act supra makes it necessary for the board, in a proceeding to vacate a street, to first adopt a resolution to that effect "describing the property which may be injuriously or beneficially affected, and shall cause notice of such resolution to be published in a newspaper of general circulation published in weeks. Such notice shall name a date, not less such city once each week for two consecutive than ten days after the last publication, at which such board will receive or hear remonstrances from persons interested in or affected by such proceeding. Such board shall consider such remonstrances, if any, and thereupon take final action, confirming, modifying or rescinding its original resolution, which action shall be final and conclusive on all persons." Section 98, supra, provides: in the preceding section, such board shall cause "Upon the final order being made, as provided to be prepared a list or roll of all the owners or holders of property, and of interests therein. sought to be taken or to be injuriously affected; * * vacation of any street, and, in case of * * a list of the owners or holders of property, or of interests therein, to be beneficially affected by such work. Such list shall not be confined to the owners of property along the line of the proposed work, but shall extend to and include all property taken, benefited or injuriously affected. In addition to such names, such list shall show, with reasonable certainty, ing to such persons and to be taken, or to be a description of each piece of property belongaffected either beneficially or injuriously." Section 99, supra, provides that: "Said board shall proceed to award the damages sustained, and to assess the benefits accruing to each piece of property on said list. When such assessments or awards are completed, said board shall cause a written notice to be served upon the owner of each piece of property, showing the amount of such assessment or award, by leaving a copy of the same at his last usual place of residence, in such city, or by delivering ** Such * a copy to such owner personally. notices shall also name a day, not earlier than ten days after service of notice, or after the said board shall receive or hear remonstrances last publication, as the case may be, on which from persons with regard to the amount of their respective awards or assessments. Persons not included in the list of such assessments or awards, and claiming to be entitled to the same, shall be deemed to have been notified of the pendency of the proceedings by the original notice of the resolution of the board." Section 101, supra, provides for a hearing by persons notified, or deemed to be notified, on a day fixed by the board, with regard to awards and assessments, by remonstrance, which the Legislature has deemed sufficient. and authorizing an appeal from the action of the board to the circuit or superior court of the county in which the city is located. Section 102, supra, provides that: Such appeal may be taken by filing an original complaint in such court within 20 days after the board has passed on such assessment or award, setting forth the action of the board, and stating the facts relied upon as showing an error on the part of the board. "Such court shall rehear the matter of such assessment de novo, and confirm, lower or increase the same as may seem just." Under these circumstances we cannot say the proceedings were not well within the principle required to constitute due process of law. Bowlin v. Cochran, 161 Ind. 486, 69 N. E. 153; Strange v. Board, 173 Ind. 640, 91 N. E. 242; Hudson Township v. Smith, supra. [6] Nor can we say that the statute attempts to deny him the right to receive compensation for any private or special injury he may have sustained on account of vacating [3] "Due process of law," within the mean- provision for compensating such abutting the street, but, on the contrary, it does make ing of the Fourteenth Amendment, supra, is not intended to control the power of the state the board vacating the street pursuant to owners for such injuries. For final action of to determine by what process legal rights section 97, supra, was the first step in the may be asserted, provided such procedure proceedings. This action, if the board did will afford reasonable notice and a fair op- its duty, was followed by the preparation of portunity to be heard before final determi-a list or roll of "all the owners or holders of nation. Iowa Central Railway Co. v. Iowa, 160 U. S. 389, 16 Sup. Ct. 344, 40 L. Ed. 467; Rogers v. Peck, 199 U. S. 425, 26 Sup. Ct. 87, 50 L. Ed. 256. This court, in the case of Campbell v. State, 171 Ind. 702, 87 N. E. 212, has said: "Due process of law requires only that provision shall be made for notice in some form, and an opportunity to be heard before some tribunal, not necessarily an organized court, nor before a jury." Appellant was entitled to notice authorized by law requiring notice, but it must be kept in mind that it is with the Legislature to prescribe what the notice shall be, as well as the tribunal before which the hearing may be had. Johnson v. Lewis, 115 Ind. 490, 18 N. E. 7; Kuntz v. Sumption, 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655; Garvin v. Daussman, 114 Ind. 429, 16 N. E. 826, 5 Am. St. Rep. 637; Hudson Township v. Smith, supra. [4] In determining this question, the courts may look to the object to be accomplished and the limits within which the hearing may be confined for the purpose of settling the character of the notice that should be required; and if it be found suitable or admissible in the special case, the demand of the Constitution in this respect will be satisfied. Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616. The sections of the act to which we have referred provide for notice to all persons interested or who may be injuriously affected, and for a day when they may be heard concerning each step to be taken by the board, beginning with notice of the adoption of the resolution, down to the final action on the assessments or awards, and for an appeal to the circuit or superior court of the county, by any party who may feel aggrieved by the board's action. [5] If, as appellant contends, this is an action for damages for property taken, or an invasion of his private right, then the act in question clearly gave him a remedy, and an opportunity to be heard before a tribunal vested with power or jurisdiction to determine his rights in the premises, and notice property, and of interests therein, sought to be taken or to be injuriously affected." Then came the ten-day notice in writing to residents on the list relative to the question of benefits or damages. A day was fixed when these matters would be heard. The case of Oler v. Pittsburgh, etc., Ry. Co., 111 N. E. 619, on this point, does not control the case at bar; for in that case the statute (Acts 1907, p. 617; sections 8910, 8916, Burns 1914) governing the vacation "was not intended to provide for the litigation in the proceeding under it of any question affecting the private rights of owners situated as appellant. Nor is there anything in the statute which expressly or by necessary implication seeks to take from appellant any private property right in the street and at the same time deny her compensation therefor." And the court also found as a fact that such right in this case was not determined; while in the case at bar appellant is content with the allegation "nor was any allowance ever made to this plaintiff for damages." From aught that appears from this allegation, he may have had his day in court, which resulted in a finding against him. [7] Appellees largely rely upon the rule, broadly stated, that property owners whose lands do not abut on the portion of the street vacated are not entitled to recover damages. That is not the rule in this state. The vacation of the street as provided by law left appellant's property abutting on a cul-de-sac. This fact is to be taken in connection with all the facts pertaining to the special case, and if it then appear that such abutting owner has, by reason of the changed conditions, suffered special and peculiar injury to his property not shared in by the general public, he was entitled to have his damages assessed. This is so whether it be called a property right invaded or an injury to his abutting property. Indiana, etc., R. Co. v. Eberle, 110 Ind. 542, 546, 11 N. E. 467, 59 Am. Rep. 225; O'Brien v. Central Iron, etc., Co., 158 Ind. 218, 222, 63 N. E. 302, 57 L. R. A. 508, 92 |