
    REINHAM v. DENNIN.
    
      N. Y. Court of Appeals;
    
      December, 1886.
    1. Witness; confidential communication to physician.] To bring a case within section 834 of the Code of Civil Procedure, forbidding a physician or surgeon “to disclose any information which he acquired in attending a patient in a professional capacity which was necessary to enable him to act in that capacity,” it is enough to show that the witness attended as a physician or surgeon upon the patient, and obtained his information in that capacity, even though he was summoned by a friend or & stranger, and not employed by the patient.
    
    
      2: The same; privilege of communication to attorney.] It seems, that to bring a case within section 835 as to communications made between client and attorney, :etc., it must be shown that the contract relation of attorney and client existed.
    3. Will; testimony on probate.] The statute applies to testamentary causes, such as the probate of a will, as well as other causes. The ruling in People v. Pierson (79 IV". T., 424) rested on the fact that that was a criminal case, and not merely on death having rendered waiver'impossible.
    4. Witness; physician's testimony to patient's condition.] The rule in Edington ■». lEtna L. Ins. Co. (77IV. T., 564), Grattan v. Metropolitan L. Ins. Co. (80 IV. 7, 281), that the statute excludes information acquired by seeing a patient, even though no communications pass between him and the physician, reiterated.
    :5. The same.] On proceedings for probate of a will, a physician, called as a witness for the contestants, testified that he was requested by the attending physician to visit the testator in consultation, and saw him shortly before his death, and advised a prescription. Held proper to refuse to allow the witness to describe the appearance and condition of the sick man, and to give an opinion as to his dying condition or his condition respecting testamentary capacity.
    Appeal from judgment allowing probate of will.
    The surrogate of Bensselaer county admitted to probate the will of James Dennin, deceased. Upon appeal to the General Term the surrogate’s decree was reversed, and special issues as to the competency of the testator and the due execution of the will were ordered to be tried before a jury.
    At the trial it appeared that the will was executed in the evening, a short time before the testator’s death, and, that during that evening, and before the execution, Dr. Bontecou was requested by the-attending physcian to be present at the testator’s house for consultation with him relative to the testator’s condition and treatment; and, in pursuance of such request, he did attend.
    He was now called as a witness for the contestants, and testified that he saw the testator, and advised' a prescription for him. The following questions were put- to the witness':
    “ Will you describe the appearance and condition of the"sick man when you got into the room % ” “ At the time you exam-
    ined this man, was he, in your judgment, in that state known to your profession as 6 collapse % “Was he, in your judgment, in a dying condition ?” “State whether, in your judgment, at any time after that occasion when you were there, James Dennin was in such a condition that he was capable of understanding and taking into account the nature and character of his property, and of his relations by blood and marriage, to those who were or might become the objects of his bounty, and make an intelligent disposition of his property by will.” The last question was repeated, confining it to the time when the witness saw the testator.
    The court excluded these questions. The will was admitted to probate, and the contestants appealed. ?
    
      
       Compare People v. Murphy, 101 N. Y. 126 (testimony of physician, sent by public prosecutor to attend patient, excluded on trial of indictment for abortion).
      It is customary, where a person, who has shown at any time symptoms of mental disorder or even- eccentricity, is about to make a will, to advise Mm to submit to medical examination, and procure the attestation of the will by the medical witnesses. Whether the fact that such examination and attestation were made for the purpose of preserving testimony of testamentary capacity would amount to a waiver of the objection has not, so tar as I know, been discussed. The mere fact of requesting medical men to attest the will as subscribing witnesses, and their doing so, appears to be as clear a waiver as could be made out without express words of waiver. It would be practicable to provide for a waiver in applications and contracts of life insurance, so that perhaps the wholesome rule of the statute may be well preserved without legislation, and without prejudice to just exceptions in all cases where a waiver is desired.
    
   Earl J.

(after stating above facts). All the questions were objected to on behalf of the proponent as incompetent under sections 834 and 836 of the Code, and the objections were sustained, and counsel for the contestants excepted, and the sole question for our determination upon this appeal is whether that exception was well taken.

Section 834 is as follows: “ 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 á professional capacity, which was necessary to enable him to act in that capacity; ” and section 836 provides that that section applies to every examination of a person as a witness, unless the provisions thereof are expressly waived by the patient.

Dr. Bontecou was a person duly authorized to practiee ■ physic. Whatever information he had about the condition of the testator he acquired while attending him as a patient. It is true that, the testator did not call him, or procure his attendance ; but he did not thrust himself into his presence or intrude there. He was called by the attending physician, and went in his professional capacity to see the patient, and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the patient, or even by strangers about him; and the statute would be robbed of much of its virtue if a physician thus called were to be excluded from its provisions, because, as contended by the learned counsel for the appellant, he was not employed by the patient, nor a contract relation created between him and the patient. To bring the case within the statute it is sufficient that the person attended as a physician upon the patient, and obtained his information in that capacity.

Section 835 provides that “ an attorney or counsellor 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.” Before that section can apply in any case a contract relation of attorney and client must exist, based upon an employment by the client, and the decisions holding this, to which our attention has been called, have no bearing upon section 834.

It is not disputed, and could not well be, that the information obtained by the witness was necessary to enable him to act in his professional capacity. Therefore, if the letter of the statute is to prevail, it cannot be doubted that the rulings of the trial judge were correct.

But"it is claimed that'the statute should "be held not to apply to .testamentary cases. There is just as much reason for applying it to such cases as to -any other, and the broad and. sweeping language of the two sections cannot be so limited as to exclude such cases from their operation. • There is no more reason for allowing the secret ailments of a patient to be brought to light in a contest over his will than there is for exposing them in any other case where they become the legitimate subject of inquiry. An exception so important, if proper, should be ingrafted upon the statute by the legislature, and not by the courts.

It is also claimed that the statute should be so construed as only to prohibit the disclosures by a physician of any information of a confidential nature obtained by him from his patient, or while attending him in a professional capacity. Such was the view of the statute taken by mein my opinion in Edington v. Ætna Life Ins. Co., 77 N. Y., 564; but my brethren were then unwilling to concur with me in that view. When the same question again came before the court in Grattan v. Metropolitan Life Ins. Co., 80 N. Y., 281, I again attempted to ' enforce the same view upon my brethren, and again failed, and and it was then distinctly held that the statute could not lie confined to information of a confidential nature, and that the court was bound to follow and give effect to the plain language, without interpolating the broad exception contended for.

It is further contended that the rule laid down in People v. Pierson, 79 N. Y., 424, should' be applied to this case. We there held that the statute did not cover a case where its prohibition was invoked solely for the protection of a criminal, «and not at all for the benefit or protection of the patient, who was dead, and a waiver of the prohibition had therefore become impossible. We are unable to perceive how the reasoning upon which that decision rests can have any application to this case. Here there is no allegation of crime, and there is a mere contest over the patient’s property.

It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief. In testamentary cases, where the contest relates, to the competency of the testator, it will exclude evidence of physicians, which is generally the most important and decisive. In actions upon policies of life insurance, where the inquiry relates to the health and physical condition of the insured, it will exclude the most reliable and vital evidence which is absolutely needed for the ends of justice. But the remedy is with the legislature, and not with the courts.

The judgment should be affirmed, with costs.  