
    Mary A. Meyer, Respondent, v. The Standard Life and Accident Insurance Company, Appellant.
    
      Evidence■—hypothetical questions may be put toa physician who has attended the deceased, with directions to lay aside all knowledge or information which he has acquired as an attending physician.
    
    Upon the trial of an action brought by the beneficiary under a policy of insurance issued upon the life of her husband, whose death was alleged to have resulted from an accidental injury, physicians who had attended the deceased were asked by the defendant certain hypothetical questions in which they were directed to lay aside all knowledge or information which they' had received as physicians during their examination and treatment of the deceased at his house, and to give an opinion on the hypothetical state of facts assumed in the question.
    The plaintiff objected to such evidence as incompetent, under the provisions of section 834 of the Code of Civil Procedure, and the court sustained the objection.
    
      Held, that this was erroneous;
    That the answer to the hypothetical question given in this form would not have disclosed, nor would it have been based upon, information obtained by the physicians while in attendance upon the deceased; and that, although this information might have influenced their answers, that fact did not render the answers incompetent, but merely affected the weight of the evidence.
    Appeal by the defendant, The Standard Life and Accident Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 17th day of June, 1895, upon the verdict of a jury rendered after a trial at the Sullivan Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      T. F. Bush, for the appellant.
    
      John W. Lyon, for the respondent.
   Putnam, J. :

This action was brought by the plaintiff, the beneficiary named in a certain policy of insurance issued by the defendant upon the life of Frank D. Meyer, deceased, her husband, whose death, it was alleged, was the direct result of an accidental injury sustained after the issuing of .the policy.

The plaintiff recovered a judgment and the defendant appeals.

On the trial, the plaintiff, after proving that the insured, Frank D. Meyer, was injured in consequence of being accidentally struck with an iron wedge on his left side in the region of the heart on the morning of November 21,1890, and after proving the circumstances attending such injury and his subsequent illness, and the fact of his death a. week afterwards, called four physicians as medical experts, to whom hypothetical questions were propounded, and who, in answer to such interrogatories, testified that, in their opinion, the death of the insured was the direct result of his being struck by the wedge. Neither of the'witnesses had attended the deceased professionally.

It appeared that the plaintiff, during her husband’s last illness, had called four doctors to examine and prescribe for him, one of them, Dr. Mayer, being the family physician. These doctors were called by the defendant as witnesses; and to three of them, Drs„ Mayer, Appley and Kemp, a hypothetical question was propounded by the defendant, in which each was directed to lay aside all knowledge or information he received as a physician at Meyer’s house during his examination and ti’eatmerit of him, and to give-an opinion on the hypothetical state of facts assumed in the question. .The question thus propounded to each of these medical experts was objected, to by the plaintiff as incompetent under the provisions of section 831- of the Code of Civil Procedure, and the. objection was sustained.

We "think such ruling of the trial court was erroneous.

The hypothetical question put to each of said witnesses was in. proper form and did not go outside of the facts, as to which some evidence had been given, and which could be assumed as the possible truth. (People v. Smiler, 125 N. Y. 717; Guiterman, et al, v. Liverpool, etc., Steamship Co., 83 id. 358.)

Although the three doctors, Mayer, Appley and Kemp, had professionally attended the deceased in his last illness, the provisions of section 831 of the Code of Civil Procedure did not prevent them . from giving an opinion as medical experts upon a supposed state of facts. Section 831 provides that “A persbn duly authorized to-practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” An answer to the hypothetical questions asked - of the witnesses would not have disclosed, or have been based upon, information obtained by them while in attendance upon the deceased. The knowledge they acquired by such attendance might, to some extent, have influenced their answer to the question; still, that fact did not render such answer incompetent, but merely affected its weight.

In People v. Schuyler (43 Hun, 88; 106 N. Y. 298) a hypothetical question, put to the physician of a jail who had attended the defendant professionally, was held proper, and the reasoning of the court in that case sustains the views above expressed. In Fisher v. Fisher (129 N.Y. 654) the following language occurs in the opinion: " Upon the trial Doctor Curtis was called to give evidence as to the mental condition of Eliza Fisher at or about the time when she executed the deed. It appears that he had attended and prescribed for Iier professionally, and that he had also seen her at various times when he was not in attendance upon her for the purpose of treating her professionally. He was asked various questions as to her mental condition, excluding from his mind in answering the questions any knowledge or information which he had obtained as to her condition while acting as her medical attendant, and confining his answers to such knowledge and information as he had obtained of her by. seeing her when she was not his patient. Counsel for the plaintiffs objected to the competency of the witness under section 834 of the Code. The court overruled the objection and the witness was permitted to answer, and he gave material evidence as to the mental condition of Eliza Fisher. In this there was clearly no error.”

If a "physician who has professionally attended upon and prescribed for a person, and. has also observed such patient while not thus in attendance, can give an opinion as to his" condition, based upon facts he observed while not acting professionally, excluding from his mind what he observed while in attendance, we can see no reason to doubt that he may also give an opinion upon a hypothetical state of facts stated in a question which excludes all knowledge of the condition of the patient which he derived while in professional attendance. The only objection that can be urged to a doctor, who has been in medical attendance upon a person, giving an ■opinion in answer to a hypothetical question as to the condition of his patient is, that the knowledge he derived while in attendance might affect his answer; but the same objection exists to the physician’s giving an opinion founded upon observation of his patient while not in actual professional attendance. (See, also, Edington et al. v. Ætna Life Ins. Co., 77 N. Y. 564; Herrington v. Winn, 60 Hun, 238; Matter of Loewenstine's Will, 2 Misc. Rep. 323.)

We do not understand that Connecticut Mut. Life Ins. Co. v. Union Trust Co. (112 U. S. 250), to which our attention is called by the learned counsel for the respondent, conflicts with the doctrine established in the cases above cited.

The defendant asked the following question of Dr. Mayer: I will ask you, Doctor, if a high fever, restlessness of the patient, complaining of pains over his entire body and accompanied with something of a cough, some spitting of blood, a delirious condition of the mind, in a case where the patient had complained-a week or so before he was taken to his bed of not feeling well, and having a cough, are among the indications sometimes of typhoid fever?” There was evidence that the deceased in his last sickness had all the symptoms as stated in the question. The question was objected to by the plaintiff and excluded. We are of the opinion that the question was a proper one. It did not call for information obtained by the physician when in attendance upon the deceased, but only for the opinion of the witness upon a hypothetical state of facts.

Without considering or determining the other questions raised, we conclude that the judgment should be reversed and a new trial granted, costs to abide the event. ~

All concurred.

Land on, J.:

I concur. The learned trial judge decided in effect that the attending physician could not answer the hypothetical question solely upon its hypothetical basis, but would to some extent base his answer upon his professionally-acquired knowledge of the patient’s actual condition. As this is a question of fact, it should be decided upon evidence. We cannot assume, as a matter of law, that the physician could not answer the question as a hypothetical one, wholly uninfluenced by his personal knowledge of the patient’s condition. I suggest that the proper practice would be to examine the attending physician preliminarily as to his ability in this respect.

Judgment and order reversed and a new trial granted, costs to abide the event.  