
    SOFIA BRENNAN ET AL. v. MANUFACTURER’S LIFE INSURANCE COMPANY.
    San Juan,
    Law,
    No. 1214.
    Motion eor New Trial.
    ^Position — Waiver as to Testimony.
    1. Whoever comes into a court of justice, whatever his ago or disability, pursues his remedies according to the regular procedure, and his attorney may bind him by waiver or in any other way.
    Note. — Authorities discussing the question as to whether osteopaths may •be considered as coming within the operation of statutes regulating the practice of medicine are collated in notes in 3 L.R.A.(N.S.) 763; 24 L.R.A. (N.S.) 103; 25 L.R.A.(N.S.) 1297;. 33 L.R.A.(N.S.) 179; and L.R.A. 19170, 822.
    
      Position — Testimony by Patient.
    2. If a patient testifies to treatment by a physician, this opens up the subject so that the physician may be used to contradict; but there is no such waiver when a patient merely testifies generally to-his health.
    Law of Evidence — Part of Contract.
    3. Sections 858 and 914 of the Revised Statutes do not affect the rule of evidence as to physicians. Such rule of evidence as to physicians not testifying is a part of the contract of insurance unless waived.
    Physicians — Osteopaths.
    4. Osteopaths, inasmuch as they do not use medicine or drugs, are not physicians within the view of tire common law, nor does the law
    . requiring a person wishing to practise osteopathy to obtain a license as an osteopathic physician make him a physician within the purview of the Law of Evidence as to disclosures by- a physician.
    Change of Opinion — Charge of Court.
    5. There is no impropriety in the court’s changing its mind on a law point and expressing that change in its charge to the jury.
    Opinion filed February 18, 1919.
    
      Mr. Frank Antonsanti for plaintiffs.
    
      Mr. Manuel Rodriguez 8erra for defendant.
   HaixiltoN, Judge,

delivered tire following opinion:

This was a suit upon an insurance policy, the assured dying about a month after the issue of .the policy. The certificate of death showed that it was from tuberculosis, and the testimony of a bacteriologist at the Presbyterian Hospital at San Juan showed that shortly prior to obtaining the policy the assured and his sputum were examined with a view to determining whether he had tuberculosis, with the result that the assured was advised that he had that disease. It is iu evidence that he undertook a hard journey in rainy weather in the mountains of Porto Eico and died within a few days from the results of the exposure. A physician was examined as an expert and testified that from the symptoms described the deceased died of pneumonia, and not of tuberculosis. The jury adopted this view and found for the plaintiffs.

A motion is made for a new trial on several grounds.

1. It is alleged as error that the court erred in not permitting Dr.- Glines, the attending physician, to testify to the reasons he had for his opinion expressed in the death certificate that the cause of death was tuberculosis. The adverse ruling of the' court was based upon § 40 of the Porto Eitío Law of Evidence, which in ¶ 4 is as follows:.—

“A physician or surgeon or the assistant of either of them cannot, without the consent of the patients, be examined in a civil action as to any information acquired in attending the patient, which was necessary to enable the physician or surgeon to prescribe or act for the patient; but this subdivision does not apply in an action between a physician or surgeon and his 'patients in which the treatment of the patient by the physician or surgeon is in issue: And provided, that a physician or surgeon is competent to testify as to the cause of the death of any person.” [Compilation 1911, § 1408.]

The law provides further in the next section that, “in an action brought by the beneficiary to recover on a policy of life insurance, taken out by the person whose life was insured, a physician or surgeon may, with the consent of the beneficiary, testify as to any information acquired by liim in attending the-deceased, but must not be compelled to so testify.”

Tbe. ground of tbe motion for a new trial is tbat tbe rule in question was waived by tbe plaintiffs in tbat tbe widow and a friend testified in rebuttal that the deceased was in good healfh.

It is objected tbat plaintiffs, being minors, could not waive their rights. This cannot be maintained. Whoever comes into a co-urt of justice, no matter what bis age or disability, pursues, bis remedies according to tbe procedure of a court of justice. TIis attorney is competent to bind him by waiver or anything else. But what was done hardly amounts to waiver of anything.. It was not voluntarily done, and volition is of tbe essence of waiver. 40 Cyc. 2399.

2. Apart from these formal objections, tbe point,cannot be sustained upon tbe merits. It seems to proceed upon tbe idea tbat if tbe patient testifies to bis condition tbe physician may be used to contradict him. The contrary has been held. 40 Cyc. 2401. It is quite true tbat if tbe patient testifies to an examination, conversation, or treatment by tbe physician, this opens up tbe subject, and tbe physician can be used to contradict tbe patient. This, however, is a different proposition from bolding tbat, where tbe patient testifies to bis health, tbe physician can be examined at large as to this subject without regard to any dealings between patient and physician.

Such was not tbe caso in tbe trial at bar of course, because tbe patient was dead, and there was not even evidence as to statements by him to any of tbe witnesses who were examined except tbe physician. Tbe subject could not be said to have been opened up in such a way as to amount to a waiver of tbe objection to testimony by tbe physician.

3. The ruling was made in harmony with the Law of Evidence adopted in Porto Rico in 1905 and above quoted. This seems to be- required by Pevised Statutes, § 721. It is quite true that §§ 858 and 914 lay down certain rules as to witnesses and evidence in Federal courts, but these do not affect the point now at issue. The general rule is that in order to secure harmony in the administration of justice the law of evidence used in'the local courts is applied in the Federal courts, except where there is special Federal law to the contrary. It is true that the absence of juries from the local civil practice makes a difference between the local .and Federal courts, and has prevented this court from declaring the local law of evidence to be binding in all respects in the Federal courts. This, however, is rather a matter of precaution than an absolute rule. In point of fact this court has always applied the local law of evidence so far as it was pertinent to the case, whether it be considered as binding under Revised Statutes, § 721, or as being a convenient and accurate summary of the rules of evidence at common law. In the case at bar it might be possible to go even further and say that this rule of evidence was part of the contract, for .the insurance policy was issued under those circumstances. It has been held that the rule may be waived by the assured, and such a waiver has been incorporated in policies of insurance, if the matter be considered of importance, instead of leaving the waiver to be a matter en pais for consideration at the trial. Connecticut Mut. L. Ins. Co. v. Union Trust Co. 112 U. S. 250, 28 L. ed. 708, 5 Sup. Ct. Rep. 119.

4. The case is not so clear, however, in regard to the objection made.that Dr. Haley should have been permitted to testify as to conversations between the deceased and himself, on the subject of the condition of the deceased at the time he was treated in osteopathy. The common-law rule was that there was no exemption of physicians from testifying, and the exemption provided by law as above stated is not to be broadened beyond its terms. The court did not permit the witness Iialey to testify to these conversations on the idea that he came within the spirit of the rule as to physicians. The point is now raised that this was an error. Wherein the error lay is not stated, but there would be error unless the witness is to be considered as a physician or surgeon. This is by no moans clear, however. In Nelson v. State Bd. of Health, 22 Ky. L. Rep. 438, 50 L.R.A. 383, 57 S. W. 501, the matter is discussed at some length, and in consonance with decisions of other states it was held that, while osteopathy is a perfectly legitimate pursuit, it nevertheless rests upon manipulation of the body, and, as it involves neither the use of drugs nor surgical instruments, is not the practice of medicine. It would follow that the practitioner would not be a physician or surgeon. 'On the other hand, the local law of 1903 in § 3 as amended March 9, 1911, requires á person wishing to practise osteopathy to obtain a license from the board of medical examiners, and speaks of such practitioners as “osteopathic physicians and surgeons.” It is doubtless true that an act of tlio legislature cannot make a calling medical which is not so in its nature, but it is a question whether it might not extend the privileges of a physician or surgeon to other pursuits by giving them the name of medicine and surgery. This point was not argued, and it would seem the better course to have a reargument of the subject.

5. It is objected that the court changed its mind during the progress of the charge after hearing the argument of counsel for defendant on tbe subject of tire knowledge by tbe deceased of bis disease. Tbe first part of tbe charge is based upon tbe idea that, in order for tbe policy to be vitiated, it Y necessary for tbe decedent to know that be was afflicted with tuberculosis, while tbe correction made at tbe instance of tbe defendant was to tbe effect that if be bad tuberculosis the policy was vitiated, whether tbe decedent did or did not know that be was so afflicted. Tbe argument now made is that this may have confused tbe jury. Tbe point would seem to be without merit. There was and could be no other way for tbe court to indicate its own change of view than to tell tbe jury and to vary the charge, particularly as this change, made ¿t the instance of tbe defendant, is not something of which tbe defendant can complain.

Tbe other grounds mentioned in tbe motion have been discussed and cannot be sustained, but tbe question of whether an osteopath is or is not a physician or surgeon will be reargued, and tbe submission on motion for a new trial is set aside as to that one point. Tbe clerk will replace tbe motion on tbe docket for that purpose.

It is so ordered.  