
    COURT OF APPEALS.
    Robert R. Westover, as executor, &c., of Hiram Gove, deceased, agt. The Ætna Life Insurance Co.
    
      Code of Civil Procedure, section 834 —When physician not allowed to testify— Personal representatives cannot waive prohibition of statute.
    
    By section 834 of the Code of Civil Procedure, a physician is prohibited from disclosing 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, and the seal of the law placed upon such disclosures can be removed Only by the express waiver of the patient himself.
    Whenever the evidence comes within the purview of the statute it is absolutely prohibited and may be objected to by any one, unless it be waived by the person for whose benefit the statute was enacted.
    An executor or administrator does not represent a deceased person for the purpose of making such a waiver. He represents him simply in reference to right of property and not in reference to those rights which pertain to the person and character of the testator (Reversing 8. C., ante, 163).
    
      Decided April, 1885.
    This is an appeal from an order of the supreme court, general term, fourth department, affirming an order denying a motion for a new trial upon the minutes of the court, and denying a motion for a new trial made upon a case and exceptions, and from the judgment entered on such order. This action is brought to recover upon a life insurance policy issued by the defendant upon the life of Hiram Gove, on the 11th day of July, 1874, upon the application of said Gove, for the sum of $4,000, payable to himself within ninety days after due notice and proof of death. Gove, the insured, died on the 15th day of October, 1881. The plaintiff, Robert R. Westover, was appointed executor of the estate of said Gove on the 9th day of November, 1881. On the 12th day of January, 1882, the plaintiff prepared and furnished proofs of loss, and at the expiration of ninety days, the policy not being paid, this action was commenced.
    In and by the express provisions of this contract of insurance, it was, among other things, mutually agreed by and between the assured and the defendant, and the policy was issued by the defendant and accepted by the assured, upon the express condition and agreement that in case the assured should commit suicide, or die by his own hand, the policy should become and be null and void.
    It was also, in and by the express terms and conditions of said policy of insurance, and" in and by the express terms and conditions of the application for said policy, which, by the express terms and conditions of said policy, and of said application, was made a part of the contract of insurance, expressly agreed and warranted, among other things, by and on the part of the assured and the defendant, and the policy was issued upon the express agreement and warranty of the assured, that the answers, statements, representations and declarations contained in or indorsed upon the said application, were and each of them was in all respects true, and that if said policy was obtained by or through any fraud, misrepresentation or concealment, or by any false statement, the policy should be absolutely null and void, and all moneys which may have been paid on account thereof should be forfeited to the defendant. In and by the application for said policy, the assured, among other things, stated and declared and warranted that “ neither of the parents, brothers, sisters or other near relatives had been afflicted with rheumatism, insanity, or with pulmonary, scrofulous or any other constitutional disease, hereditary in its character.” It appeared that Gove committed suicide, or died by his own hand, and that at least a sister of the assured had been insane. These conditions and facts raised various questions, which are fully stated in the annexed points, and submitted for consideration. The cause was tried before Mr. justice Dwight and a jury, on the 9th, 10th and 11th days of January, 1883, resulting in a verdict in favor of plaintiff for $4,188, the full amount of the policy. A motion was thereupon made for a new trial upon the minutes of the court, which was denied, and from the order denying such motion an appeal was taken. Upon the rendering of the verdict the case was ordered to be heard in the first instance at general term, upon case and exceptions, and judgment directed to be entered as - security, and all proceedings thereon to £e suspended until the hearing and determination at general term The cause was accordingly heard at general term, resulting in an order affirming the order appealed from, and denying the motion for a new trial upon case and exceptions, and directing judgment upon the verdict and judgment was accordingly entered. And the case comes here on appeal from that order and judgment.
    
      Rollin Tracy, for defendant, appellant, made and argued among others the following point:
    I. The evidence of Dr. Briggs as a witness for- the plaintiff should have been excluded as privileged, under section 833 of the Code of Civil Procedure, under the objection of the defendant. The plaintiff called Dr. Briggs as a witness in his behalf, and after showing by the witness that he was, and for upwards of fifty years had been a practicing physician ; that he knew the insured in his lifetime, attended him professionally, and visited him first on the 29th day of June, 1881, the witness was allowed to testify as to howhe found the assured, his treatment, &c., under the objection of the defendant. “ That the evidence was incompetent and privileged under section 834 of the Code of Civil Procedure. The witness being a practicing physician and the evidence being a disclosure of information acquired by him in attending Grove in a professional capacity, and necessary to enable him to act in that capacity, the witness should not be allowed to testify and disclose the information so acquired.” The evidence introduced under this objection was for the purpose of establishing the insanity of the insured as the cause of suicide, a fact necessary to be established to enable the plaintiff to recover, and was the most serious evidence upon that question in the case. The section of the Code under which the objection to this testimony was made is as follows : “ Sec. 834. A person 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.” This statute absolutely prohibits the physician from disclosing any information which -lie acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity. The evidence of the witness was clearly “ a disclosure of information acquired by him in attending the insured in a professional capacity, and which was necessary to enable him to act in that capacity. And unless there is some statute relieving this section from this absolute prohibition, this evidence was improperly admitted under this exception. No such relief is to be found, unless it be under section 836 of the Code, which provides: “Sec. 836. The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing the patient or the client ” The three sections referred to are those relating to confessions made to clergymen, the information furnished physicians, and the communications to an attorney; and its only materiality here is as to its bearing upon section 834, referring to information furnished physicians by the patient, &c. This section (836) seems to be merely for the purpose of enabling the patient to waive the prohibition of the other section (834) and allow the evidence of the physician to be introduced when offered by the party opposed, not for the purpose of enabling the patient to introduce the evidence of his own physician, and the statements of himself to his physician in his own behalf against his adversary, whether true or false, in defiance of the prohibition of section 834, and the objection of his adversary, thereby enabling the patient (or his representative) to produce evidence for himself which might not otherwise exist, and which might have been false in fact and an imposition upon his physician, and manufactured with an intent to perpetrate a fraud upon his adversary. No case is found where, as in this case, the insured or his representative seeks to introduce such testimony in his own. behalf. All the cases are where the insurance company seeks to introduce the testimony of the physician against the interests of the insured, the patient, and in such cases the insured may, by express waiver, allow the evidence. To say that the statute means that only the patient or his representative shall have the right to object to such evidence, and while he only can waive the prohibition, he may waive it in his own behalf, would be opening the gate for the manufacture of evidence, and for fraud of the most dangerous character, and a violation of the greatest safeguard known to the rules of evidence, that no man shall be allowed to prove his own statement in his own interest. The courts uniformly say that no definite or final construction can be put upon this section, but it is a rule of itself, to be construed and applied with reference to each case (Pierson agt. The People, 79 N. Y., 424). The right of the defendant to object in such cases seems to be fully recognized by this court in the case of Edington agt. The Mutual Life Insurance Company (67 N. Y.), the only case where reference to this question seems to be directly referred to, where the court says (p. 195), “ there is no ground for claiming that the right of objecting to the disclosure of a privileged communication is strictly personal to the party making it, or to his personal representatives, and that it cannot be available to a third party.” The general term sustained this ruling upon the theory that the prohibition of the statute could be removed by the party, or his legal representative, for the purpose of protecting the estate of the deceased; and to uphold a contract made by him in his lifetime with the defendant. And in support of this conclusion cited Staunton agt. Parker (19 Hun, 59); Edington agt. Mutual Life Insurance Co. (67 N. Y., 196); Parish Will Case (25 N. Y., 9, &c.). But these cases fail to sustain the position. In Staunton agt. Parker, three daughters of the testator contested the probate of a codicil to the testator’s will, and offered the privileged evidence to overcome that instrument against the executor, who sought to sustain it, and who objected to the evidence as privileged, &c. It was held that the privilege could be waived by the contestants, as heirs, &c., of the testator. And it was also held that the evidence was competent because it did not appear that the information sought was not the disclosure of any confidential information acquired by the physician in his professional capacity, but facts which were open to the observation of any person who had seen and conversed with the testator. An application of the first reason to the present case clearly sustains the position of the defendant; and this court in Grattan agt. Metropolitan Life Lnsurance Company (80 N. Y, 297), has disposed of the second reason adversely. In The Parish Will Case it seems the evidence was received without objection. And in Edington agt. Mutual Life Insurance Company it already appears that this court stated (p. 195), that “ there • is no ground for claiming that the right of objecting to the disclosure of a privileged communication is strictly personal to the party making it, or to his personal representatives, and that it cannot be available to a third party.” A proposition emphatically favorable to the position of this defendant.
    
      S. E. Payne, for plaintiff, respondent.
    The defendant objects to the evidence of the doctor who attended the assured, on the ground of privileged communications. The plaintiff is the personal representative, and, as such,- had a right to waive the privilege of the statute, which he did by calling the witness (Code, sec. 886; Stanton agt. Parker, 19 Hun, 55, 59 ; Edington agt. Mutual Life Co., 67 N. Y., 196; Greenleaf, sec. 243).
   Earl, J.

This action was commenced upon a life insurance policy issued to the plaintiff’s testator. It was provided in the policy that it should be void if the insured should commit suicide or die by his own hand. He hanged himself, and upon that ground the action was mainly defended. The plaintiff gave evidence tending to show that the testator hanged himself while insane, and the question was submitted to the jury for their determination whether the hanging was the voluntary, conscious, willing act of the testator, or whether he was at the time so insane that he was either unconscious of the act which he performed, or was unable to understand what the physical consequences of it would be; and upon that question the jury found for the plaintiff. In the course of the trial the plaintiff called a physician who had known the insured for a long time and who attended him professionally a short time before his death. He testified that he visited him first in June, 1881, and he was asked this question : State how you found him ? ” The counsel for the defendant objected to the question on the ground that “ the evidence was incompetent and privileged under section 834 of the Oode of Civil Procedure, viz.: The witness being a practicing physician and the evidence being a disclosure of information acquired by him in attending Gove in a professional capacity and necessary to enable him to act in that capacity, and the witness should not be allowed to testify and disclose the information so acquired.” The court overruled the objection, and the witness answered at length giving important evidence as to the mental and physical condition at that time and subsequently of the insured. The claim of the learned counsel for the respondent on the argument before us was that the plaintiff, as the personal representative of the deceased, could waive the seal which the statute puts upon such evidence, and upon that ground the ruling of the trial judge was sustained by the general term.

Section 833 of the Code provides that a clergyman or ' other minister of any religion shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs.” Section 834 provides that a person 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.” Section 835 provides that “ an attorney or counselor-at-law shall not be allowed to disclose a communication made by his client to him or his advice given thereon in the course of his professional employment,” and section 836 provides that “ the last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or client.” It is thus seen that clergymen, physicians and attorneys are not only absolutely prohibited from making the disclosures mentioned, but that by an entirely new section it is provided that the seal of the law placed upon such disclosures can be removed only by the express waiver of the persons mentioned. Thus there does not seem to be left any room for construction. The sections are absolute and unqualified. These provisions of law are founded upon public policy, and in all cases where they apply the seal of the law must forever remain until it is removed by the person confessing, or the patient or the client (Edington agt. Mutual Life Ins. Co., 67 N. Y., 185; Edington agt. Ætna Life Ins. Co., 77 N. Y., 564 ; Pierson agt. The People, 79 N. Y., 424; Grattan agt. Metropolitan Life Ins. Co., 80 N. Y., 281).

In Greenleaf on Evidence (sec. 243), speaking of communications made to an attorney, the learned author says: “ The protection given by the law to such communications does not •cease with the termination of the suit or other litigation or business in which they were made; nor is it affected by the party ceasing to employ the attorney and retaining another; nor by any other change of relations between them ; nor by the death of the client. The seal of the law once fixed upon them remains forever, unless removed by the party himself in whose favor it was there placed. It is not removed without the client’s consent, even though the interests of criminal . justice may seem to require the production of the evidence.” In Wharton on Evidence (sec. 584), it is said that the privilege of the client may be waived by him, but that “ the evidence of the waiver must be distinct and unequivocal.” In Pierson agt. The People, it was said: “ The plain purpose of this statute was to enable a patient to make known his condition to his physician without the danger of any disclosure by him which would annoy the feelings, damage the character, or impair the standing of the patient while living, or disgrace his memory when dead.” In Grattan agt. The Metropolitan Life Insurance Company, Danforth, J., said: “ The case before us is not one where the witness was called in for the first time after the death of the patient, but one where the lips of the physician were sealed during the life of the patient, and where, although by death he loses the patient, his lips must remain closed. It was held under the old law that the seal must remain until removed by the patient, and it is now so provided by statute.”

The purpose of the laws would be thwarted, and the policy intended to be promoted thereby would be defeated if death removed the seal of secrecy from the communications and disclosures which a patient should make to his physician, or a .client to his attorney, or a penitent to his priest. W lienever the evidence comes within the purview of the statutes it is absolutely prohibited, and may be objected to by any one unless it be waived by the person for whose benefit and protection the statutes were enacted. After one has gone to his grave the living are not permitted to impair his fame and disgrace his memory by dragging to the light communications. and disclosures made under the seal of the statutes. An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property and not in reference to those rights which pertain to the person and character of the testator. If one representing the property of a patient can waive the seal of the statute because he represents the property, then the right to make the waiver would exist as well before death as after, and a general assignee of a patient, for the purpose of protecting the assigned estate, could make the waiver; and yet it has been held that an assignee in bankruptcy is not empowered to consent that the professional communications of his assignor shall be disclosed (Bowman, agt. Norton, 5 C. & P., 177). In Edington agt. The Mutual Life Insurance Company (67 N. Y., 185), it was not decided nor stated that a personal representative could waive the protection of the statutes, but it was held that the personal representative or assignee of the patient could make the objection to evidence forbidden by the statutes; and the opinion might have gone further and held that any party to the objection, as the evidence in itself is objectionable, unless the objection be waived by the person for whose protection the statutes were enacted.

Without further discussion or citation of authorities, we think the statute admits of no other construction than that where the evidence comes within the prohibition of the statute, its reception, if objected to, can be justified only when the patient, penitent or client, as the case may be, waives the protection the statutes give him.

We are, therefore, of opinion that for the error in the reception of the evidence objected to, the judgment should be reversed and a new trial granted, costs to abide event.

All concur.  