
    Mary Renihan, Appl’t, v. Martha Dennin, individually and as ex’rx of James Dennin, deceased, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 7, 1886.)
    
    1. Evidence—Witness—When physician incompetent to testify— Code Civ. Pro., §§ 834-836.
    Where a physician was called by the attending physician and went in his professional capacity to see the patient, that was enough to bring him within Code Civil Procedure, sections 834 and 836. The prohibition of the statute is not restricted to information of a confidential nature obtained by the physician.
    2. Same—In testamentary cases.
    In testamentary cases, where the contest relates to the competency of the testator, the evidence of his physician is not competent.
    3. Same—In life insurance case.
    In actions upon policies of life insurance, where the inquiry relates to the health and physical condition of the insured, the evidence of the physician is not competent.
    
      4. Same—Attorney—When incompetent as a witness under Code Civ. Pro., § 835.-
    The contract relation of attorney and client, based upon an employment by the client, must exist before Code Civil Procedure, section 835 can apply.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment entered upon a verdict at the Eensselaer circuit upon special issues' touching the testamentary capacity of James Dennin and the due execution of his will.
    
      E. Countryman, with W. J. Ludden, for appl’t; Charles E. Patterson, with Robert PL. McClellan, for resp’t.
    
      
       Affirming 38 Hun, 270.
    
   Earl, J.

The surrogate of Eensselaer 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.

The trial came on and it appeared that the will was executed in the evening, a short time before the testator’s-death, and that during the same evening before the execution of the will Dr. Bontecou was requested by the attending physician 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 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 him: “Will you describe the appearance and condition of the sick man when you got into the room?”

“At the. time you examined this man was he in your judgment in that state known to your profession as ‘ 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 same question was repeated confining it to the time when the witness saw the testator All the questions were objected to on behalf of the proponent as mcompe-. tent under sections 834 and 836 of tile 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 a professional capacity, and 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 practice 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 therein 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 hmited as to exclude such cases from their operation. There is no more reason fox 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 engrafted 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 me in my opinion in Eddington 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 it was then distinctly held that the statute could not be 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 Pierson v. People (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 fife 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

Ml concur.  