
    Theresa Lippe, Appellant, v. Benjamin L. Brandner and Others, Respondents, Impleaded with Henry J. Lippe, Jr., and Others.
    First Department,
    June 28,1907.
    Evidence — privilege of physician — waiver.
    When in an action' to test the validity of a will, the court has in' effect ruled that the privilege of a physician from testifying as to confidential communications with a deceased patient or as to facts which tend to disgrace Ms memory, must he waived by the widoy and all the beneficiaries, the ruling will not he construed as denying - the right of a physician to testify.to any information as to the mental or physical condition of the testator, unless' all parties waive the privilege. It should be construed as excluding only confidential communications or facts tending to disgrace the testator’s memory.
    An exception to such ruling is not available to a party who in fact has been allowed to elicit the testimony of a physician as to the mental and physical condition of a testator, for in any event be has not been harmed thereby.
    Laughlin, J., dissented, with memorandum. '
    Appeal by the plaintiff, Theresa Lippe, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 5tli day of June, 1906, upon the verdict .of a jury rendered after a trial at the New York Trial Term.
    
      Stillman F. Kneeland, for the appellant.
    
      George Hahn, for the respondent Brandner.
   McLaughlin, J.:

This action .was brought under section 2653a of the Code of Civil Procedure to test the validity of a will made on the 11th of September, 1902, by John B. Radley, who died on the loth. of. July,' 1904. The testator left him surviving a widow and two daughters, one of whom is the plaintiff, who has several children. By the terms of his will lie left all- of hisproperty in trust for the life of his widow, and. directed that the income theréfrom be paid to her during her life and upon her decease -the entire estate be divided into two equal parts, one of which he gave absolutely to one daughter and the other he left in trust for the plaintiff, with remainder toiler’ children, The defendants had a verdict establishing the valida ity of the will and from the judgment thereon plaintiff appeals, relying solely upon one exception.

During tire course of the trial the plaintiff called as a witness Dr. Sheffield,, a practicing physician who had treated the testator in a professional way. After he had stated what the testator complained of on an occasion referred to, and what he found from an examination, he was asked: “ Q. During that interview how many times did he ask you what he should do with the powders?” Objection was made to the question on the ground that it called for a privileged communication and was not competent under section 834 of the Code of Civil Procedure, to which the court responded that there were some exceptions under the rule, but whether this is one or not I do not know.” Thereupon plaintiff’s counsel said he would withdraw the question and would not take an exception, and immediately thereafter asked the following question: “ Q. The privilege has been asserted regarding your testimony as to. anything you learned while yon were treating this Mr.' ¡Radley and I do not want to ask you about anything as to that, but I want to ask you in what condition you found him one day when you came in from the street?” ■ The witness answered,.stating in detail just what took place and how the testator appeared, and then the defendants’ attorney cross-examined him as to the matters, which had been drawn out by the direct examination; when he had finished, plaintiff’s counsel claimed that the privilege had been “ inadvertently ” waived by the cross-examination, and he thereupon propounded this question: “ Q. Referring, now, please, to the times when he came to your office and was consulting you professionally, will you state to the jury the condition of mind that you found him in and what the mental disease was, if any, you found him suffering-from at that time in August, 1902 ? ” This was objected to on the ground that it called for a privileged communication under the section of the Code above referred to. f The objection was sustained and an exception taken-—plaintiff’s counsel claiming that the privilege was waived so far as his client was concerned. A discussion thereupon took place between the court and both counsel as' to whether the waiver by one of the parties to the action was sufficient or whether all must join in to enable a physician to testify — the Court finally calling attention of defendants’ 'counsel to the provision of section 836 of the Code which permits, in an action of this charac-. ter, a physician, or surgeon to disclose information as to the mental or • physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential comma-; nications. Defendants’ counsel responded : “ That is correct, sir.”The court then added : “And such facts as would tend to disgrace the memory of .the patient.”. Defendants’counsel replied: “ I said subject to the qualifications. Such as called for confidential communications and such as tended to disgrace the memory of the deceased. There is no question but that that is the rule. I have some medical testimony myself, and I don’t wish to waive pur rights in-objecting to the disclosures by their witnesses and then be confronted by such an objection when we come to put on our medical witnesses.' Therefore, I present it to your Honor. It-seems to me, though, that so far as it involves the disclosure of confidential communications, neither side is at liberty to waive the "provisions of the Code alone.” The,court answered:- “Ho, [ think they would all have to join. I suppose that'if the widow and the heirs at law would" join,- that that would be sufficient, but I do not think any individual heir or next of kin could waive it for all. I sustain -the objection. I understand there are attorneys here for other-heirs at .law.in this matter, and unless they waive it I will sustain the objec-tion.” Thereupon plaintiffs counsel .excepted and' this is the exception relied upon. ■

I am unable to see any merit in the exception. It seems to me it related solely to confidential communications and to such facts as would tend to disgrace the memory of the patient, and if I am correct in this, then, the ruling is not erroneous. That this was the understanding of counsel for both parties and the court seems to me to necessarily follow from the discussion,' and espécially from what took place immediately following the -ruling, when plaintiffs counsel called two physicians who had treated the testator in a professional way. Dr. Dold was asked::. “ Q. Won’t you state, please, the mental' condition of Hr. Eadley at the time when he was committed , to your care in August,'1903 ? ” Defendants’ counsel objected' to this on the sole ground that it was “ too remote, the date fixed being in August, 1903, and the will having been made on the 11th of September, 1902.” The objection was overruled and the witness permitted to state in detail just what he observed with reference to the testator and that he was then suffering from senile dementia and his disease had progressed to a marked degree. Dr. Pomeroy was also permitted to tell in detail the mental condition of the testator at the time he treated him and that he diagnosed the case as one of senile dementia. The testimony of these two physicians and the facts which tlie plaintiff was permitted to prove by them clearly indicate that the trial court in making the ruling of which complaint is made did not hold,' as contended by the appellant, that the plaintiff could npt prove by an attending physician any information as to the mental or physical condition of the testator unless all of the parties to the action waived the privilege. The ruling, as already intimated, was limited in that respect to confidential communications and such facts as would tend to disgrace the memory of the patient and, therefore, wras not erroneous. (Code Civ. Proc. § 836.) ■

Hot only this, but the defendants produced two physicians who had treated the decedent in a professional way arid they were permitted, without objection, to fully state his physical and mental condition. It is incredible that plaintiff’s counsel, if he understood the ruling as now contended by the appellant-^ would riot have interposed some objection or at least have called' the court’s attention to the fact that the plaintiff had not been pérmitted to offer similar proof.'

But if, in any view, it could be said that the ruling were erroneous (Pringle v. Burroughs, 70 App. Div. 12), nevertheless it does not constitute reversible error because it is obvious that the ruling could not have substantially harmed the plaintiff. (Roche v. Vason, 185 N. Y. 128.).

The judgment appealed from, therefore, should- be affirmed, with costs. ‘

Patterson, P. J., Houghton and Lambert, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I dissent upon the ground that the court erred in sustaining the objection to the question propounded to Dr. Sheffield, and that appellant’s exceptions thereto were neither withdrawn nor waived.

Judgment; affirmed, with costs.  