
    Violet E. Sheldon, Appellant, v. Melvin Sheldon, Respondent.
    Second Department,
    October 30, 1911.
    Husband and wife — action for separation — cruel and inhuman treatment — inducing wife to submit to operation for.abortion — evidence — communication between husband and wife.
    
      It seems, that ¡¡where a husband, being a physician, induces his wife to allow him to perform operations resulting in abortions by falsely stat- . ing that the abortions were necessary because of her inability to bear children, he is guilty of cruel and inhuman treatment, which will entitle the wife to a decree of separation.
    In an action for separation upon the grounds aforesaid statements made by the husband to his wife whereby she was induced to believe that it would be dangerous for her .to give birth to children are not privileged communications between husband.and wife within section 831 of the Code of Civil Procedure.
    As the husband was a physician such communications were made between .patient and physician rather than between husband and wife, and the wife being the patient had a right to waive the privilege.
    Appeal by the plaintiff, Violet E. Sheldon, from a judgment of the Supreme Court in favor of the defendant, entered in the- office of the clerk of ■ the county of Nassau on the 6th day of January, 1911, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint. . -
    
      Jacob Rieger, for the appellant.
    
      Leander B. Faber and Charles H. Street, for the respondent.
   Burr, J.:

From a judgment for defendant in an action for separation on the ground of cruel and inhuman treatment, plaintiff appeals. No evidence was offered by defendant. Upon that received the court, might have found that at the time of her marriage plaintiff was thirty-seven years old, in perfect health and was able to give safe delivery to a normal child. During the thirty-two months that plaintiff resided and cohabited with defendant her menstrual flow was interrupted and delayed nine times, the first time being about five weeks after her marriage. Defendant is á physician. On the first occasion he placed plaintiff on an operating table, dilated the mouth of the womb with instruments and then inserted a rubber catheter. After allowing it to remain about twenty-four hours he removed it because of the pain caused by it, but in the evening of that day he inserted it' again, and the next morning the overdue menstrual discharge began, forcing out the catheter with it. On the subsequent eight occasions referred to, the overdue menstruation followed the use of drugs administered by defendant, or operations performed by him similar to the one detailed. Each of the operations was attended with considerable pain, and after one of them plaintiff was confined to her bed for a period of three weeks, and to the house 'for about five weeks longer. On one occasion when- the menstrual discharge had been delayed for several weeks, but had finally followed an operation, defendant examined the discharge and pronounced it a “growth ” of four or five weeks. There was also evidence from three witnesses that defendant stated that he did not wish to have any children, that he and his wife were too old to have any children and that they would only be an expense. If it is the fact that, induced by such sordid motives, defendant deprived plaintiff of the maternal joy so highly prized by every good woman, if in addition he induced her to submit to treatment intended to produce miscarriages and which did produce them, with the accompanying pain and suffering, by false and fraudulent statements as to .the necessity therefor, judgment should have gone for plaintiff in this case and not for defendant. Defendant contends that there is no evidence that plaintiff ever became pregnant, or that the treatment administered by him was unnecessary or without plaintiff’s consent. Interruption of the menstrual flow might indicate pregnancy. That, taken in connection with the evidence of defendant’s admission that on one occasion the resumption thereof was accompanied with the discharge, of something which he with his experiénce as a physician pronounced a “growth” of four or .five weeks, called upon him to satisfactorily establish that pregnancy had not taken place, or that the operations or the administering of drugs was justified by the circumstances of the case. Plaintiff sought to prove how she came to submit to defendant’s treatment. She. Sought to prove statements by him to her on these various occasions, which if accepted as true would have warranted the court in finding that he induced her to believe that it was dangerous to her health a¿d life to give birth to a child, that her physical condition and the condition of her womb were such that it was necessary to apply the treatment .which he did, and that she only consented to such treatment because of the advice which he gave to her that it was physically dangerous for her. to give birth to any child, upon which advice she relied .because of his professional knowledge and skill. All conversations upon the subject, and all statements'made by defendant to plaintiff relating thereto, were excluded upon defendant’s objection that they were confidential communications between husband arid wife, and that plaintiff, was incompetent to testify to the same. In so ruling the trial court erred. “A husband or wife shall not be compelled, or without the consent of the other, if living, allowed, to disclose a confidential communication, made by one to the other, during marriage.” (Code Civ. Proc. § 831.) But this statute does not exclude all communications between husband and wife which are not had in the presence of third persons. It relates only to such as are expressly made in confidence, or such as spring out of and are induced by the marital relation, and are, therefore, confidential' in character. (Parkhurst v. Berdell, 110 N. Y. 386; Millspaugh v. Potter, 62 App. Div. 521; Norris v. Lee, 136 id. 685.) A husband trusts in .the affection and loyalty of his wife, arid a wife in that of her husband. Induced thereby, one often confides to the other his or her, inmost thoughts, revealing that which would ordinarily be concealed from' every other person in the world. Such communications are confidential because of the source from which they spring. It is difficult, if not impossible, to formulate a definition so comprehensive as to furnish a ready method of determining the character of every communication between husband and wife. But the communications here reviewed do not even approach the border line. The acts, alleged to be cruel, were the acts of the husband. The reasons given for the medical treatment, which involved such acts, were reasons given by a physician .to a patient. The sufficiency of these reasons may tend to show whether these particular acts were cruel or benign. But it was not the husband speaking to the wife, but the physician speaking to the patient. In accepting the reasons given for the treatment employed, she was. relying upon the professional skill of the physician, not the love and affection of the husband. As a layman, simply as a husband, he would have been unable to give her the advice which she claims that he did. As a physician, if the circumstances warranted it, he might have given precisely the same advice to a woman not his wife. Confidential they probably were, but the marital relation had nothing to do with inspiring the confidence. The confidence was that between patient and physician only (Code Civ. Proc. § 834), and that confidence plaintiff expressly waived, as she had a right to do. (Code Civ. Proc. § 836.) For error in excluding this testimony, the judgment must be reversed, .with costs to the appellant, and a new trial granted.

Jenks, P. J., ITirschberg, Woodward and Rich, JJ., concurred.

Judgment reversed, with costs to the appellant, and a new trial.granted.  