
    Supreme Court—General Term—Third Department.
    
      July, 1889.
    PEOPLE v. BROWER.
    Upon the trial of a defendant under an indictment under section 191 of the Penal Code, for aiding and abetting a woman to perform an operation intended to procure miscarriage, a communi-. cation made by defendant to a physician, that a woman with whom he was living as his wife, and who was pregnant, had attempted to produce a miscarriage, in which attempt he had assisted her, is privileged, when made to a physician for the purpose of enabling him to give medical treatment to the woman, and cannot be introduced in evidence against the defendant.
    Appeal by the defendant, Franklin B. Brower, from a judgment entered upon a conviction of manslaughter in the first degree, rendered against him in the Court of Oyer and Terminer of the County of Rensselaer, November 26, 1888.
    The indictment was found under section 191 of the Penal Code, charging the defendant with aiding and assisting Mary A. Brower in performing, by means of an instrument, an operation upon her person, with intent to procure a miscarriage, from the effects of which she died, such operation not being necessary to preserve her life.
    The facts sufficiently appear in the opinion of the court.
    
      T. 8. Eagan and J. E. Long, for defendant, appellant.
    
      Lewis E. Griffith, District Attorney, for the people, respondent.
   Lasdou, J.

On the night of June 18, 1888, the defendant called upon Dr. Cronnse, a person duly authorized to practice physic and surgery, and employed him to attend Mary A. Brower, who was at the residence of her parents in Grant’s Hollow, Rensselaer County, about three-fourths of a mile from Dr. Crounse’s office. The defendant was urgent. The doctor testified that upon coming into his office the defendant said : “ For God’s sake, hurry up; my wife has a fit, or fainted, or something. I don’t know what.” “ He said: ' Probably you would like to know what the difficulty is before you leave the office.’ I said, Yes; it might be a help to me, because I might need something that I wouldn’t take with me.’ He said, 6 This lady down to the house I am living with, I am not married to, but I expect to get a divorce from my other wife, and get married. This lady is about three months gone in the family way, and she introduced a catheter with a wire in her womb, and after she had introduced it far enough to hurt her, I blew in it.’ I said, £ What did you blow in it for ? ’ He said, 61 done it before, and it worked all right.’ ” Dr. Crounse testified that upon the defendant’s statement he considered the. case an emergency ; that this was important. He had previously prescribed as a physician for the defendant, and for one of the children of Mrs. Brower; that on the present occasion he went immediately with the defendant to the house where Mrs. Brower was. He found her lying upon a bed, unconscious, and, as we judge from his testimony, in a dying condition, and she died in about half an hour. Two physicians, who made an autopsy, testified that in their opinion the woman died from the shock caused by the injection of air into the uterus. Aside from the testimony of Dr. Crounse there was no evidence tending to connect the defendant with any operation to procure a miscarriage. The testimony of Dr. Crounse respecting the statement made to him by the defendant was duly objected to by his counsel, under section 834 of the Code of Civil Procedure. The objection was overruled by the court, obviously in deference to the case of Pierson v. People, 79 N. Y. 427.

' Section 834, Code Civil Procedure, made applicable to criminal trials by section 392, Code of Criminal, Procedure, forbids the physician “ to disclose any information which he acquires in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” In civil cases the rule has been rigidly applied. The Pierson Case was one of poisoning. -The attending physician was permitted to testify to the symptoms and condition of the patient, as he found them from an examination openly made in the presence of the patient’s wife and the prisoner, and as he also learned them from the patient, his wife, and the prisoner. This testimony was admitted, as we understand the ruling, because, although the facts presented brought the testimony within the letter of the act, they did not bring it within the spirit. The court remarked, respecting the information acquired by the physician in attending his patient: “ There was' nothing of a confidential nature in anything he learned or that was disclosed to him. The symptoms and condition were such as might be expected to be present in a case of arsenical poisoning.” Stress also was laid upon the fact that in no way was the confidence, feelings, or character of the patient affected by the disclosure.

The present case is widely different. The defendant employed the physician to try to save Mrs. Brower’s life. His alarm and anxiety were great. He knew what had taken place, and suspected that it was the cause of her sudden prostration, and felt that the physician ought to know it, and to govern his treatment accordingly. The physician did want to know. In this critical moment, with the sole purpose of saving the woman’s life, he disclosed the secret to the physician to enable him to act rightly.- To have withheld the disclosure would have made the defendant a consenting party to the woman’s death. We have no doubt that the statute, both in its letter and spirit, protects the confidence thus reposed in the physician, and forbids him to betray it. • With this testimony stricken out there remains practically nothing to sustain the conviction.

Rote.—Recent Oases on Privileged Communications to Physicians.

The judgment of conviction and sentence must be reversed, and a new trial granted.

Learned, P. J., and Ingalls, J., concur.

What Communications are not Privileged.—In an action on a life insurance policy it may be proved by physicians that they attended the insured professionally, although the information they acquired during such attendance cannot he disclosed. Numrich v. Supreme Lodge Knights and Ladies of Honor (N. Y. City Ct.), 3 N. Y. Supp. 653.

Declarations made by a plaintiff to his physician as to the circumstances under which the injury occurred may be proved by the physician where the information is not necessary to enable the physician to act in a professional capacity. Brown v. Rome, Watertown, etc. R. R. Co., 45 Hun, 439.

A physician may testify as to outward visible facts observed by him in the person whom he was not attending professionally, although prior to the time mentioned he had been the attending physician of such person. Burley v. Barnhard, 9 St. Rep. 587.

A physician is not precluded from testifying as to the condition of a person whom he treated as a physician before he had been licensed to practice as such. Weil v. Cowles, 45 Hun, 307.

The privilege does not extend to a student in the office or a person applying for medicine for the patient. Babcock v. People, 15 Hun, 347.

Upon a will contest, two physicians were examined by proponent as to interviews with testator upon the subject of contestant’s mental capacity. Held, this was no error, as they were not communications necessary to enable the witnesses to act in a professional capacity toward the deceased. Hoyt v. Hoyt, 113 N. Y. 493.

The burden of showing that the privilege exists is upon the party claiming it, and the privilege, to be availed of, must be claimed and the proposed evidence seasonably objected to. Hoyt v. Hoyt, 113 N. Y. 493. And where the physician testifies that he was not acting in a professional capacity when he obtained the information, and the contrary is not shown, the evidence is properly admitted. Stowell v. American Co-operative Life Association (N. Y. Super.), 5 N. Y. Supp. 233; 23 St. Rep. 706.

Two physicians who had never been in professional attendance upon testatrix and who were called upon by the attorney to examine testatrix as to her mental condition, but not for the purpose of treatment, are not disqualified from testifying in probate proceedings in support of her mental capacity. Matter of Freeman, 46 Hun, 458.

To constitute one a physician there must be a contract of employment to examine the patient’s condition, and if necessary, to administer remedies, except possibly in the ease of one who is unconscious and for whom friends employ a physician. Id. (But see Renihan v. Dennin, 103 N. Y. 573 ; 18 Abb. N. C. 101.)

What Communications are Privileged.—The following communications to and transactions with physicians by patients have been held to be privileged under the statute.

In an action for personal injuries necessitating the amputation of the patient’s leg, a question to the physician who performed the operation,What was the condition of the patient’s leg at that time?” Jones v. Brooklyn, B. & W. E. R. Co. (City Ct. of Brooklyn), 3 N. Y. Supp. 253.

The opinion of a medical witness as to the mental condition of the patient, where it appeared that his interview with such patient and the attention given to his mental condition were solely for the purpose of medical treatment. Wilcox v. Wilcox, 46 Hun, 32.

Where the physician attending as such, a patient, and obtained information in that capacity (Brigham v. Gott, 20 St. Rep. 429 ; 3 N. Y. Supp. 318) ; even though he was summoned by a friend or a stranger and was not employed by the patient. Renihan v. Dennin, 103 N. Y. 573; 18 Abb. N. C. 101.

In an action upon a policy of life insurance, where breach of warranty of soundness was one of the defenses pleaded, evidence by a physician who had professionally treated the assured, as to information so acquired. Ferguson v. Massachusetts Mutual Life Ins. Co., 32 Hun, 306.

Information received through the sense of sight as well as that communicated through the ear. Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281.

A question to a physician who was called upon to make a professional examination of the brother of the insured, “What opinion did you form, based upon the general sight of the man, before you made an examination or before you had any conversation with him?" Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274; affirming 28 Hun, 430.

Lunacy and Habitual Drunkard Proceedings.—Testimony of the physicians attending one confined in a lunatic asylum is inadmissible in an inquisition to inquire as to the alleged lunatic’s mental capacity to manage his own affairs. Matter of Baird, 11 St. Rep. 363.

The prohibition of the statute applies to the affidavit of the physician made for the purpose of supporting an application for the appointment of a committee of a lunatic or habitual drunkard. Matter of Hoyt, 20 Abb. N. C. 163.

Testamentary Proceedings.—The prohibition of the statute applies to testamentary proceedings (Mason v. Williams, 6 If. Y. Supp. 479 ; Matter of Hannah, 11 St. Rep. 807), and'where the probate of a will is contested upon the ground of the unsouudness of the mind of the testator, physicians are incompetent to testify as to the condition of the testator from the knowledge acquired by them in a professional capacity. Matter of Coleman, 111 N. Y. 220; Loder v. Whelpley, 111 N. Y. 339. And such prohibition applies to what the physician who had been called into consultation with the physician who attended the deceased, saw and learned as to the mental incapacity of the detieased to execute a will. Renihan v. Dennin, 38 Hun, 270 ; S. C., 103 N. Y. 573; 18 Abb. N. C. 103.

The prohibition does not extend to all information acquired in attending a person in a professional capacity, but only to such as was acquired for the purpose of enabling the physician to act in that capacity. Hoyt v. Hoyt, 9 St. Rep. 731; Matter of Boury, 8 St. Rep. 809.

Upon the hearing before a surrogate upon an application to admit to probate the will of deceased, objections were raised upon the ground of want of testamentary capacity on the part of the testatrix. It appeared that the physician wdio had at one time attended the deceased in a professional capacity had, thereafter, for a long period visited her as a friend and not in a professional capacity ; and the evidence showed that the impression which he gained by those friendly visits related back to and were influenced by the knowledge which he acquired during the time he was attending her professionally. Held, that it was not necessary to establish that the knowledge which he acquired in respect to his patient when he was attending her professionally was necessary to enable him to prescribe for her ; that it was only necessary, in order to preclude him from testifying, to show that he acquired the information during the course of his professional visits. Matter of Darragh, 53 Hun, 591.

Waiver.-—A plaintiff in an action for personal injuries who has had three physicians at different times, does not, by calling on one of them to testify to the extent and character of the injuries, open the door to the defendant to call the others waive their disqualification as a witness. Hope v. Troy & Lansingburgh R. R. Co., 40 Sun, 438.

The act of the plaintiff in calling a physician to testify as to her condition, which witness was cross-examined as to the plaintiff’s condition upon a prior day, does not waive plaintiff’s privilege to object to disclosure by another physician called as a witness for the defendant, of her condition at such prior time. Record v. Village of Saratoga Springs, 46 Sun, 448.

In an action for personal injuries, where the physician who attended the plaintiff was called as a witness, plaintiff’s attorney and counsel has authority to waive the privilege of his client and permit the witness to disclose facts learned upon his attendence upon the p>atient. Alberti v. N. Y., Lake Erie & W. R. R. Co., 43 Sun, 421.

Where a patient has waived the privilege by calling the physician as a witness upon the trial of a cause and examining him as to the matter in question, such waiver cannot be recalled by the patient; and upon a subsequent trial of the action, the adverse party has the right to call such physician and examine him as to the same matters. . McKinney v. Grand St., etc. R. R. Co., 104 N. Y. 352.

And in a will case one who, by not objecting, has waived the privilege, cannot afterwards recall the waiver. Hoyt v. Hoyt, 112 N. Y. 493.

The privilege cannot be waived by any other person but the patient, even after death. Westover v. Ӕtna Life Ins. Co., 99 N. Y. 56; Loder v. Whelpley, 111 N. Y. 239 (overruling, on this point, Whelpley v. Loder, 1 Dem. 368).

Physicians’ Books.—Physicians’ account-books containing information which is privileged, are not subject to discovery and inspection. Mott v. Consumers’ Ice Co., 12 Abb. N. C. 137; affirmed, 19 Hun, 119 ; Mason v. Libbey, 2 Abb. N. C. 137.

United States Circuit Courts in New York.—The New York' statute is controlling in the Circuit Courts of the United States in the State of New York. Connecticut Mutual Life Ins. Co. v. Union Trust Co., 112 U. S. 250.

See also an article discussing the case at bar by the present Editor, entitled “Privileged Communications to Physicians,” in New York Law Journal, September 13, 1889.  