
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANNA GRUICH, PLAINTIFF IN ERROR.
    Argued March 8, 1921
    Decided June 20, 1921.
    1. The declaration of a patient, as to his symptoms made to his physician or surgeon for the purpose of treatment are admissible in evidence, but when such declarations are made, not for the purpose of treatment, but for the pur-pose of leading the physician or surgeon to form an opinion to which he may testify as a witness for the declarant, such declarations are incompetent.
    2. Declarations made to a physician as to the cause of the injury which is the particular subject-matter of inquiry and which may be proved by other evidence, is inadmissible.
    On error to the Supreme Court, whose opinion is reported in 95 N. J. L. 263.
    For the plaintiff in error, Frank E. Bradner.
    
    For the state, J. Henry Harrison and John A. Bernhard.
    
   The opinion of the court was delivered by

Swayze, J.

The defendant was indicted for and convicted of procuring the miscarriage of R. M. The Supreme Court affirmed the conviction. The only question to be discussed is whether or not the trial judge properly allowed Dr. L. to testify as to his conversation with Mrs. M. in the presence of Dr. D. with a notary, Huelsenbach, the defendant being-absent. The statement was obtained and written down by Huelsenbach and signed by Mrs. M. on -the day of her death. It was obtained by questioning b3r the doctor. On his examination in chief he failed' to testify to parts of the statement.. It was shown to him on his cross-examination, only to refresh his recollection. Objection was made but he was allowed to use the statement after he had testified that his. recollection was refreshed. He was then asked to state ihe rest of the conversation on which he based his opinion that she died as a result of malpractice. The statement was made several days after he had been called to attend her, and had then already made up his mind that her condition was (hie to abortion, and had rendered the medical service he thought necessary. It is not questioned that he was right in what he did. He was then asked to state the rest of the conversation on which he based his opinion (the opinion that he had formed several days before). He .-aid that he made Mrs. M. say that she had an abortion performed and in answer to the question as to the rest of tha conversation he testified that, “she said she went to a woman.” The state considered that important for the purpose of showing that tire operation may have been performed hv the defendant. It was not for the purpose of diagnosis, for that had already been made; it was not for the purpose of treatment, for treatment had been had, none farther w'as proposed, and her death, was hourly expected. The Supreme Court held that the witness was entitled to examine the paper for the purpose of refreshing his recollection with relation to any facts mat.eiial to the issue notwithstanding that the writing was done, by a person other than the witness, provided that the witness knew the contents of the paper at the time it was written. We do not question that it would have been proper to allow Dr. L. to refresh Ms re collection by an examination of the paper if the fact to be. proved, or statement meant to he and in fact elicited, from the witness, was relevant or material. This was not the case. While statements which would otherwise be hearsay, may be admissible sometimes, when made to a physician, that is not always true.

The rule has been settled by the Court of Errors and ■Appeals in. Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452, following the opinion of the Supreme Court in State v. Gedicke, 43 Id. 86. The court there said: “It is well settled that the declaration of a patient as to his symptoms, made to his physician or surgeon for1 the purpose of treatment, are admissible in evidence. While such declarations partake of the nature of hearsay, they derive some credibility beyond that of hearsay, from the fact that the patient expects his physician or surgeon to be guided by them in administering remedies, and1 so the patient has an incentive beyond the ordinary obligation to tell the truth. But when such declarations are made not for the purpose of treatment, hut for the purpose of leading the physician or surgeon to form an opinion to which he may testify as a witness for the declarant, not only is this reason for credibility absent but instead self interest becomes a motive for distortion, exaggeration and falsehood. Hence it is the better conclusion- that declarations made under such circumstances are not competent evidence on behalf of the declarant.” The rule is approved by Prof. Wigmore. Wig. Ev., § 1722. He cites the opinion of the Supreme Court of Massachusetts in Roosa v. Loan Company, 132 Mass. 439. The headnote of that case is: “The statement by a patient to his physician of the canse of an injury from which he is suffering, is inadmissible as evidence of that cause in an action for the injury.” The hearsay statements in the Boosa case and the Lambertsou case differ from the one now before us, because in those eases the 'hearsay was the statement of the plaintiff in the action; here it is a statement of the injured person who is not a party to the suit because the suit is a,n indictment in which the state is the active party. The reasoning underlying the decisions is quite as conclusive. In the Massachusetts case the court said: “While the 'witness, not'an" expert, can testify only to such exclamations and complaints as indicate present existing pain and suffering, a physician may testify to a statement or narrative given by his patient in relation to Iris condition, symptoms, sensations and feelings both past and present. Ini both cases these declarations' are admitted from necessity, because in this way only can the bodily condition of the party, who is the subject of the injury, and who seeks to obtain- damages, be ascertained. But the necessity does not extend to declarations by the party as to the cause of the injury, which is the principal subject-matter of inquiry and which may- be proved by other evidence.” This we think is a sensible statement of the rule and it excludes Dr. L.’s testimony as to Mrs. M/s statement as to tlie cause of her condition. If the statement in itself is 'inadmissible, it can injake no difference whether the witness’ recollection is refreshed by the paper or not, for after it is refreshed, lie cannot properly testify to what the statement is. All the sanctions which make it possible to open the door for this sort of hearsaj” are absent in the case. In the Gedicke case the court said: “The achnjission of the evidence was an exception to the usual rule excluding hearsay evidence and was founded on the necessity of learning from the patient herself facts within her own kndwiedge which, the physician should know to form an intelligent and accurate opinion of her present health and situation.” In the present case what the state sought was not the symptoms which the physician might want to know or the feelings of Mrs;. M.; it was. merely the declaration of Mrs. M. as to the responsibility of some woman for the malpractice. The question that called it out, in view of the way the statement was obtained, was undoubtedly for the purpose' of exculpating Dr. L. in case of a possible suspicion of guilt on bis part. He engineered the statements, and as he himself said, miade her say that there had been an abortion'. It is conceded that her statement is not admissible as a dying declaration and probably it was because of this fact that the attempt was made to get in the statement by the doctor’s oral report. Tins would be a mere device to make admissible, testimony otherwise irrelevant. Me think the admission of the statement was an error. It was assigned for error, especially by assignments 6 and 7.

Let the judgment, be reversed and the record remitted for a new trial.

For affirmance—Hone.

For reversal—The Chancellor, Swayze, Trenoiiard,' Parker, Bergen, Kalisch, Kateexeach, Mhjte, HeppenjrBIIMEE, MlI.LJAUrS, JJ. 10.  