some evidence which, if true, authorized the assessment of exemplary damages: Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116; 10 Am. Rep. 103. Where the offense is not punishable by the criminal law, and malice or oppression weigh in the controversy, exemplary or vindictive damages may be assessed. What we have said as to the other alleged errors disposes of the question presented by the instruction refused. It is further contended that a new trial should have been granted, by reason of accident and surprise on account of an absent witness. There is no diligence shown,- no application for a continuance, and the evidence is merely cumulative. There is no error in the record.

Judgment affirmed, at costs of appellant.

RAILROADS MISCONDUCT OF PASSENGER NO EXCUSE FOR WANTONNESS. -Though a passenger renders himself liable to expulsion from a railroad car on account of his disorderly conduct, he may recover punitive damages where the defendant's servants acted in a wanton, high-handed, and outrageous manner: Philadelphia etc. R. R. Co. v. Larkin, 47 Md. 155; 28 Am. Rep. 442, and note; extended note to Chicago etc. R. R. Co. v. Parks, 68 Am. Dec. 570-573.

RAILROADS RIGHT OF PASSENGER TO RESIST EXPULSION. Where a passenger on a railroad car has paid his fare, he has a right to resist an attempt of the train-men to eject him, and if he is injured in making such resistance, he may recover therefor: English v. Delaware etc. Canal Co., 66 N. Y. 454; 23 Am. Rep. 69; Higgins v. Watervliet etc. R. R. Co., 46 N. Y. 23; 7 Am. Rep. 293, and note; Illinois etc. R. R. Co. v. Whittemore, 43 Ill. 420; 12 Am. Dec. 138, and note; Jardine v. Cornell, 50 N. J. L. 485.

RAILROADS EXPULSION OF PASSENGER PUNITIVE DAMAGES. - Punitive damages may be awarded for the wrongful expulsion of a passenger from a train: Georgia etc. Co. v. Esckew, 86 Ga. 641; 22 Am. St. Rep. 490, and note; Chicago etc. R. R. Co. v. Flagg, 43 Ill. 364; 92 Am. Dec. 133, and note; Hoffman v. Northern Pac. R. R. Co., 45 Minn. 53. Punitive damages should not be awarded unless it is shown that in expelling a passenger the defendant's servants acted in a wanton and reckless manner: Patry v. Chi cago etc. R'y Co., 77 Wis. 218.

LANE v. Boicourt.

[128 INDIANA, 120.]

PLAINTIFF MAY WAIVE TORT AND SUE ON CONTRACT IN ACTION AGAINST PHYSICIAN FOR MALPRACTICE. In an action against a physician for malpractice, the plaintiff may waive the tort and sue upon contract. COMPLAINT IN CONTRACT NOT IN TORT WHEN.-A complaint in an action against a physician for malpractice, in which the plaintiff alleges that he employed the defendant to give professional attention to his wife in child-birth, promising him compensation; that the defendant contracted with the plaintiff to render the required services; and that, as a breach of said contract, the defendant failed to give the plaintiff's wife the proper attention, is a complaint in contract, and not in tort. EVIDENCE-PHYSICIAN RELIEVED FROM OBLIGATION OF SECRECY AS TO OCCURRENCE IN SICK-ROOM WHEN. Where, in an action against a physician for malpractice, the plaintiff testifies to an occurrence in the sick-room, the physician himself, or one present as a consulting physi cian, may testify as to the occurrence. The plaintiff, by opening the matter to investigation, removes the obligation of secrecy on the defendant's part.

ACTION for malpractice. The opinion states the case.

T. J. Terhune and B. S. Higgins, for the appellant.

H. C. Wills and O. P. Mahan, for the appellee.

ELLIOTT, J. The material facts stated in the appellee's complaint are these: The appellant was engaged in the practice of medicine and surgery for fifteen years prior to the seventeenth day of April, 1883, and represented himself to be skilled as a physician, surgeon, and accoucheur. On the day named, the appellant was employed by the appellee to give professional care and attention to his wife, for which compensation was to be paid. The appellee's wife was brought to bed in child-birth, and the appellant was employed to give her such professional care as she required to safely deliver the child, and also to bestow upon her such medical and surgical attention as might be needful until her restoration to health. The appellant failed to give his patient the proper support or attention during parturition, but through his efforts caused the period of labor to be shortened, resulting in a laceration and rupture of the muscles connected with the genital organs. The appellant's duty was to at once bring the ruptured parts together, and to take measures to cause them to reunite, but this duty he failed to perform, and neggently suffered five days to elapse before attempting to bring the parts together. When he did make the attempt, he did

his work so negligently and unskillfully as to cause his patient great injury.

The outline we have given is sufficient to indicate the general scope of the complaint, but in order to determine the question which the appellant's counsel present, it is necessary to refer specifically to some of the allegations of the pleading. The question which counsel present is, whether the complaint is in contract or in tort, and this question must, of course, be determined from the allegations of the pleading. It is proper to preface our analysis of the complaint by saying that a plaintiff may elect to sue in tort or in contract. It is probably true that some of the expressions contained in the prevailing opinion in Boor v. Lowrey, 103 Ind. 468, 53 Am. Rep. 519, indicate a different doctrine, but the limitation placed upon that decision when the case was in this court for the second time authorizes the conclusion that it was not adjudged on the first appeal that a plaintiff may not elect to sue in contract, and thus waive the tort: Hess v. Lowrey, 122 Ind. 225; 17 Am. St. Rep. 355. The later decisions, as well as the earlier, very clearly assert that the tort may be waived, and an action brought upon the contract: De Hart v. Haun, 126 Ind. 378; Goble v. Dillon, 86 Ind. 327; 44 Am. Rep. 408; Hoopingarner v. Levy, 77 Ind. 455; Burns v. Barenfield, 84 Ind. 43; Coon v. Vaughn, 64 Ind. 89; Staley v. Jameson, 46 Ind. 159; 15 Am. Rep. 285. The decisions elsewhere fully recognize the rule that the action may be maintained upon the contract of the surgeon: Gladwell v. Steggall, 5 Bing. N. C. 733; Pippin v. Sheppard, 11 Price, 400. In Nelson v. Harrington, 72 Wis. 591, 7 Am. St. Rep. 900, it is conceded that an action will lie on the contract, but it was held that the allegations in the complaint before the court respecting the contract were mere matters of inducement.

Assuming that an action will lie upon a contract where facts are properly pleaded, we shall briefly give the result of our analysis of the appellee's complaint. It states that the appellee employed the appellant, and promised him compen sation, and this, according to the English rule, is a controlling element. It avers, although very loosely, that the appellant contracted with the appellee to render the required services. It also contains this statement, "and the plaintiff alleges, as a breach of said contract, that the defendant failed to give the plaintiff's wife the proper attention." In our opinion, the complaint is in contract, and not in tort, for the aver

ments referred to show that the pleader relied upon the agree ment. The complaint can be much improved by amendment, but, as the question comes to us, we hold it sufficient as a complaint upon a contract, although we think a motion to make more specific would compel the plaintiff to amend it. We have decided the question stated because it may hereafter arise, not because it is essential to a decision of the case now before us. The complaint unquestionably states a cause of action, whether it be construed as declaring in contract or in tort, and if it does, the demurrer cannot prevail against it. The appellant's counsel hint, rather than assert, that a question of the statute of limitations is involved, but there is no such question in the record.

We come now to a question presented by the ruling denying a new trial. The appellee, his wife, and his wife's mother testified as to all that was done by the appellant at the time the surgical operation which caused the injury to the appellee's wife was performed. The appellant also testified, without objection, to what occurred at that time. He then called Dr. Williamson, who was in attendance as a consulting surgeon, but the trial court refused to permit him to testify to any matter that occurred at the time the operation was performed by the appellant. In our judgment, this was error.

The testimony given by the witnesses of the appellee broke the seal of privacy, and gave publicity to the whole matter. The patient waived the statutory rule. The course pursued laid the occurrence open to investigation. Nothing was privileged, since all was published. The statute was not meant to apply to such a case as this, nor is it within the letter or the spirit of the law. If a patient makes public in a court of justice the occurrences of the sick-room for the purpose of obtaining a judgment for damages against his physician, he cannot shut out the physician himself, nor any other who was was present at the time covered by the testimony. When the patient voluntarily publishes the occurrence, he cannot be heard to assert that the confidence which the statute was intended to maintain inviolate continues to exist. By his voluntary act he breaks down the barriers, and the professional duty of secrecy ceases. It would be monstrous if the patient himself might detail all that occurred, and yet compel the physician to remain silent. The principle is the same whether the physician called is a consulting physician, or is the defendant. The opening of the matter to investigation removed

the obligation of secrecy as to all, not merely as to one. When the obligation to silence is broken, it is broken for the defendant as well as for the plaintiff. As to all witnesses of the transaction, it is fully opened to investigation, if opened at all, by the party having a right to keep it closed. A patient cannot elect what witnesses shall be heard, and what shall not; for if once investigation legitimately begins, it continues to the end. A patient may enforce secrecy if he chooses; but where he himself removes the obligation, he cannot avail himself of the statute to exclude witnesses to the occurrence. The case of Hope v. Troy etc. R. R. Co., 40 Hun, 438, is not in point. In that case the physicians were called at different times; here there was one time and one occurrence, and that occurrence was given full publicity by the patient. It is only the secrets of the sick-room or of the consultation, we may say in conclusion, that the physician is forbidden to reveal; and what is made public by pleadings and by evidence in a court of justice can by no possibility be privileged to benefit the party who thus gives it such wide publicity.

Judgment reversed.

PHYSICIANS AND SURGEONS- ACTIONS AGAINST, FOR MALPRACTICE. An action is one sounding in tort, and not upon contract, when the complaint alleges, in an action against a physician, that he was negligent in making a proper diagnosis of a case, and in failing to prescribe the proper remedies therefor, although there was an implied contract that the defend. ant treat the plaintiff in a skillful and proper manner: Nelson v. Harrington, 72 Wis. 591; 7 Am. St. Rep. 900; De Hart v. Haun, 126 Ind. 378. See extended note to Webster v. Drinkwater, 17 Am. Dec. 242-247, where the subject of waiving tort and suing on contract is discussed.

CITIZENS' STREET RAILWAY COMPANY v. ROBBINS.

[128 INDIANA, 449.]

CORPORATE STOCK IS PERSONAL PROPERTY.-Shares of stock in a corpora tion owned by a decedent at the time of his death are personal property, and upon his death descend to his heirs at law, subject to the right of his administrator to subject the same to sale in the manner prescribed by the laws of the state.

SALES OF PERSONAL PROPERTY OF DECEDENT MUST BE MADE IN MANNER PRESCRIBED BY STATUTE.—The common-law right of the administrator to sell and dispose of personal property of his intestate does not exist in Indiana. Sales of such property must be made in the manner prescribed by its statutes upon the subject. In the absence of an order from the proper court, the sale must be public, and where the sale is private,