v0813-97

Iii the United States Circuit Court of Appeals for

the Xiiitit circuit.

No. 2259.

THE ARIZONA AND NEW MEXICO RAIL-

WAY COMPANY,

Plaintiff in Error,

vs.

THOMAS P. CLARK,

Defendant in Error.

Reply Brief of Thomas P. Clark.

Plaintiff in error will be called defendant.

The defendant contends that the proffered testi-

mony of Dr. Stark should have been received, but

has failed to come within the well-recognized rule,

in that it was not shown that Dr. Stark before mak-

ing the examination informed Mr. Clark of the

nature, purpose and object of his visit, and that with

such knowledge Mr. Clark submitted to the exami-

nation, but, on the contrary, it appears from the

evidence that Mr. Clark was led to believe that de-

fendant had employed Dr. Stark to make the ex-

amination for the benefit of Mr. Clark, and in fact

the defendant had deceived Mr. Clark as to the pur-

pose and object of the examination.

The rule is well stated by the Supreme Court of

California :

"It seems to me that he occupies a different

position than if he had gone there originally upon

the suggestion of the defendant, and stated to the

patient that he came there solely and entirely at

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