
    Mary Renihan, Appellant, v. Martha A. Dennin, Individually and as Executrix, etc., Respondent.
    Where a physician attending upon a patient requests another physician to attend with him for consultation in regard to the condition of the patient, and he does so attend, he is brought within the provisions of the Code of Civil Procedure (§§ 834, 836), prohibiting a physician from disclosing information acquired in attending a patient in a professional capacity, necessary to enable him to act in that capacity. To bring the case within the statute it is sufficient that the physician attended as such upon the patient and obtained his information in that capacity.
    The distinction between the case of a physician and that of an attorney pointed out.
    The said provisions apply where the physician is called as a witness in proceedings for the probate of the will of the patient.
    These provisions are not limited to a prohibition of disclosures by a physician of information of a confidential nature, but apply to all information obtained by the physician from his patient while attending in a professional capacity, which was necessary to enable him to act.
    ' Pierson v. People (79 1ST. Y. 434), distinguished.
    (Argued October 39, 1886;
    decided December 7, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, which affirmed a judgment, entered December 5,1885, upon a verdict on trial of issues touching the testamentary capacity of James Dennin, and the due execution of a paper presented for probate as his last will. (Reported below, 38 Hun, 270.)
    The facts sufficiently appear in the opinion.
    
      E. Countryman for appellant.
    The burden of "proof was upon the proponent as objector to show all the facts which subjected the proposed testimony to the claim of privilege. (Earl v. Grant, 46 Vt. 113; Edington v. Ætna L. Ins. Co., 77 N. Y. 571; Daniel v. Daniel, 39 Penn. St. 191, 210, 211; Wilson v. Rastall, 4 Durnf. & E. 758, 759, 760 ; Yordan v. Hess, 13 Johns. 492 ; Hoffman v. Smith, 1 Caines, 157; Bk. of Utica v. Mersereau, 3 Barb. Ch. 533, 595; Rochester City Bk. v. Suydam, 5 How. Pr. 254.) Even if Dr. Bontecou had been called as a consulting physician by direction of the deceased, it did not render him an incompetent witness. (1 Greenl. Ev., § 248 ; Kendal v. Grey, 2 Hilt. 302; 1 Whart. Ev., § 606; Edington v. Ætna L. Ins. Co., 77 N. Y. 569; Code of Civ. Pro., §§ 834, 836; Hewitt v. Prince, 21 Wend. 79; Pierson v. People, 18 Hun, 239; 79 N. Y. 424; Staunton v. Parker, 19 Hun, 55 ; Allen v. Pub. Ad., 1 Bradf. 221; Whelpley v. Loder, 1 Dem. 369; Kendal v. Grey, 2 Hilt. 300 ; Snow v. Gould, 74 Me. 540; Nore v. Baird, 12 Ind. 318.) The provisions of the Code relating to physicians and clergymen (§§ 833, 834) are the same in substance as those of the Revised Statutes. (2 R. S. 406, §§ 72, 73.) These provisions were originally adopted merely to place physicians and clergymen, with reference to their patients and penitents, in the samé position with attorneys and their clients, as established at common law. (5 Edm. Stat. 726, 727, revisers’ notes; Wilson v. Rastall, 4 Durnf. & E. 754, 759 ; GraMcm Case, 80 N. Y. 301.) And the common-law rule, as applied to attorneys, is now embodied and declared in section 835 of the Code of Civil Procedure. (Throop’s note to § 835 ; Coveney v. Tannehill, 1 Hill, 33; Britton v. Lorenz, 45 N. Y. 51; Greenough v. Gaskell, 1 Myl. &K. 98, 103 ; Whiting v. Barney, 30 N. Y. 337, 340; Blackburn v. Crawfords, 3 Wall. 192; Rochester Bk. v. Suydam, 5 How. Pr. 258; Westover v. Ætna L. Ins. Co., 99 N. Y. 56, 58, 59 ; Greenl. on Ev., § 213.) It never applied to a testamentary case involving the capacity of the deceased to make a will, nor to his acts relating to the factum of the will, or in reference to the disposition of his estate. (Russel v. Jackson, 9 Hare, 387; 15 Jur. 1117; Blackburn v. Crawfords, 3 Wall. 176; In re Chapman, 27 Hun, 573; Sheridan v. Houghton, 16 id. 628; 6 Abb. N. C. 231; Sanford v. Sanford, 61 Barb. 295, 305, 306 ; 5 Lans. 187, 196, 197 ; Whelpley v. Loder, 1 Dem. 368 ; Graham v. O'Fallon, 4 Mo. 338; Hare on Disc. [2d ed.] 162; 1 Whart. on Ev., § 591; Scott v. Harris, 113 111. 447.) The privilege did not apply to facts ascertained while acting in a professional capacity, which were collateral or not, in the nature of confidential communications. (Doe v. Andrews, 2 Cowp. 845, 846; Studdy v. Saunders, 2 Dowl. & Ry. 317, 319 ; Hurd v. Moring, 1 C. & P. 372; Lord Say & Seal's Case, 10 Mod. 40,11; Ramsbotham v. Senior, L. R., 8 Eq. Cas. 575 ; Bramwell v. Lucas, 2 Barn. & Cr. 715, 750; Cobden v. Kendrick, 1 Durnf. & E. 131, 432; Sawyer v. Birchmore, 3 Myl. & K. 572; Brown v. Foster, 1 Hurlst. & Norm. 736, 710 ; Robinson v. Flack, 8 Lond. Jur. 888; Baker v. London, etc., R. Co., L. R., 3 Q. B. 91; Wooley v. N. Lond. R. Co., 4 C. P. 602; Crawcour v. Salter, L. R., 18 Ch. Div. 30, 36; Riggs v. Denniston, 3 Johns. Cas. 198, 203; Yorden v. Hess, 13 Johns. 192, 193; Johnson v. Daverne, 19 id. 135; Coveney v. Tannehill, 1 Hill, 33, 36, 37; Crosby v. Berger, 11 Paige, 377, 379 ; Clark v. Richards, 3 E. D. Smith, 89, 97; Rochester Bk: v. Suydam, 5 How. Pr. 251, 261; Hibbard v. Haughian, 70 N. Y. 55, 62 ; Britton v. Lorenz, 45 id. 52 ; Tyler v. McNeil, 16 Week. Dig. 389; Mulford v. Muller, 3 Abb. App. Dec. 330; Mandeville v. Guernsey, 38 Barb. 225; Snow v. Gould, 71 Me. 513 ; Scott v. Harris, 113 I11. 417, 454; Com. v. Bacon, 135 Mass. 521.) The privilege was not recognized nor the rule applied to further frauds or unlawful purposes. (Duffin v. Smith, 1 Peak, 108; Russell v. Jackson, 9 Hare, 387, 393; 15 Jur. 1117; Follett v. Jeffreys, 1 Sim. [N. S.] 1, 17; Reynall v. Sprye, 10 Beav. 51, 54, 56; 11 id. 618; Gartside v. Outrom, 35 L. J. Ch. 113,114,116; Brown v. Foster, 1 Hurlst. & Norm.736; Ramsbotham v. Senior, L. R., 8 Eq. 575, 580; Burton v. Donley, 8 Eq. 576, note ; Guesley v. Monsley, 2 Kay & Johns. 288, 291; Hare on Disc. [2d ed.] 163; Reg. v. Orton, 3 Short. Notes, 9381; L. R., 14 Q. R. Div. 170, 171 Queen v. Cox, 14 Q. B. Div, 153, 156 ; Tichborne v. Lushington, 1 Short. Notes, 5211; 14 Q. B. Div. 172; Beadles v. Bunch, 11 Simons, 332 [1838]; Kelly v. Jackson, 13 Irish Eq. 129 [1848]; Hutchinson v. Reed, Hoff. Ch. 317 [1839] ; Blackburn v. Crawfords, 3 Wall. 193,194; Coveney v. Tannehill, 1 Hill, 33 ; Lewin v. Redfield, 2 Week. Dig. 109, 198 ; In re Chapman, 27 Hun, 573, 574, 575; Dunn v. Amos, 14 Wis. 115 ; In re Cole, 8 R. 105 ; 1 Whart. on Ev., § 590; Bk. of Utica v. Mersereau, 3 Barb: Ch. 598, 600.) Communications made to the attorney in the presence of all the parties are not privileged. (Baugh v. Crodock, 1 Mood. & Rob. 183; Cleve v. Powell, id. 228; Britton v. Lorenz, 45 N. Y. 52; Hebhard v. Haughian, 70 id. 55; Whiting v. Barney, 30 id. 330; Queen v. Cox, 14 Q. B. Div. 173, 174; Regina v. Jones & Hayward, 1 Denn. C. C. 167; Cutts v. Pickering, Nel. Ch. 81; Gilbert on Ev. 277; Coveney v. Tannehill, 1 Hill, 36; Annesley v. Anglesea, 17 How. St. Tr. 1139, 1240, 1242; People v. Blakeley, 4 Park. Cr. 176 ; Treat v. Jones, 28 Conn. 334; Jones v. Dusenberre, 15 Week. Dig. 286; Rose v. Truax, 21 Barb. 361 ; 2 Parsons on Contracts, 746, 767; 17 Am. Jur. 305; 1 B. S. [7th ed.] 367, §§ 20, 24, subd. 4.) Conceding that whenever the privilege attaches, the seal of secrecy, unless waived by the patient, remains unaffected by his death, the present case does not come within the purview or prohibition of the statute. (People v. Utica Ins. Co., 15 Johns. 380, 381; Jackson v. Collins, 3 Cow. 89, 96; White v. Wager, 32 Barb. 253; Pierson v. People, 18 Hun, 248, 249; 79 N. Y. 433, 434; Allen’s Case, 1 Bradf. 223, 224; Fraser v. Jenkinson, 42 Mich. 207; People v. Murphy, 101 N. Y. 126, 127, 129; Penal Code, §§ 509, 520, 521; Paige v. People, 3 Abb. App. Dec. 439; State v. Shuntless, 18 Me. 368 ; 1 Whart. Cr. Law [8th ed.J, §§ 697, 709 ; Regina v. Avery, 8 Car. & P. 596 ; Ann v. Lewis, Fost. Cr. Cas. 116 ; Regina v. Jones & Hayward, Den. Cr. Cas. 166; 2 Cas. & Kir. 234; Penal Code, §168 ; 2 Whart. Cr. Law, § 1349 ; Tichborne v. Lushington, 14 Q. B. Div. 172; Reg. v. Orton, id. 171; Queen v. Cox, id. 165.) The knowledge acquired by Dr. Bontecon of the condition of the deceased, and the fact sought to be proved by the witness, was not of a confidential nature. (Eddington's Case, 77 N. Y. 551; Staunton v. Parker, 19 Hun, 57, 58, 59 ; Delafield v. Parish, 1 Redf. 103; Campon v. North, 39 Mich. 608, 609 ; Hewitt v. Borley, 9 N. Y. 375, 377; S. C., 17 id. 340 ; Holcomb v. Holcomb, 95 id. 316.)
    
      Charles E. Patterson for respondents.
    The testimony of Dr. Bontecon was properly rejected; the information he obtained in attending the testator being of a privileged character. (Code of Civil Pro., § 834; Edington v. Mut. L. Ins. Co., 67 N. Y. 185; Johnson v. Johnson, 4 Paige, 460; Johnson v. Johnson, 14 Wend. 637; Allen v. Public Adm'r, 2 Bradf. 221, 233 ; Pearsall v. Elmer, 5 Redf. 181; Whelpley v. Parker, 1 Dem. 368; Hunn v. Hunn, 1 N. Y. Sup. Ct. [T. & C.] 499; 77 N. Y. 564; Grattan v. Med. L. Ins. Co., 80 id. 281, 300 ; Dilleber v. Home L. Ins. Co., 69 id. 256 ; Cohen v. Cont. L. Ins. Co., id. 300; Westover v. Ætna L. Ins. Co., 99 id.56; Staunton v. Parker, 19 Hun, 55.)
   Earl, J.

The surrogate of Rensselaer county admitted to probate the will of James Dennin, deceased. Upon appeal to the Greneral 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 incompetent under sections 834 and 836 of the Oode; 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 lie 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 counselor 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 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 en-grafted 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 while attending him in a professional capacity. Such was the view of the statute taken by me in 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 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 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.-

All concur.

Judgment affirmed.  