Facts
This judgment concerns a divorce trial between Mr. and Mrs. Bühlmann. The last cantonal instance rejected the wife's divorce application without hearing the witnesses invoked by the plaintiff. The Federal Court admitted the plaintiff's appeal, annulled the contested judgment and referred the case back to the lower instance to complete the evidence and make a new decision.
The plaintiff had filed a medical certificate from Dr. X, dated January 29, 1969, and requested his examination as a witness. The cantonal court rejected this request, considering that doctors are only heard as witnesses for special reasons and that, in this case, no special reason justified this examination.
Considerations
The Federal Court considered that the cantonal instance had made an error in refusing to hear Dr. X as a witness. According to Article 321 of the Swiss Criminal Code, only the patient is authorized to release the doctor from professional secrecy. The release is already contained in the fact that the doctor's testimony is required.
The Federal Court also considered that the cantonal instance was wrong to refuse the examination of Dr. X on the grounds that doctors are not usually heard as witnesses on medical findings. This would constitute an unjustified restriction of the…